In the Matter of: A.L.B., (03-1275) 06/15/2004

Appeal by respondent-juvenile from adjudication and disposition orders entered 22 April 2003 by Judge Samuel M. Tate in the District Court in Mecklenburg County. Heard in the Court of Appeals 7 June 2004.

Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

Winifred H. Dillon, for respondent-juvenile.

HUDSON, Judge.

    By a juvenile petition filed on 2 January 2003, A. L. B. (“juvenile”) was charged with felonious breaking and entering and with felonious larceny pursuant to felonious breaking and entering. The juvenile petition specifically charged that “the juvenile did unlawfully, willfully, and feloniously steal, take and carry away a CD radio and a cooler the personal property of New Friendship Presbyterian Church . . . .”
    At the trial on 22 April 2003, the State presented evidence tending to show that at approximately 9:30 p.m. on 5 December 2002, police received a call about a break-in at New Friendship Presbyterian Church. Officer Brian Luphart responded to the call and discovered a broken window at the church. Based on informationobtained by other officers from witnesses, and with assistance from a canine officer, Officer Luphart located the juvenile and Justin Caormina approximately thirty minutes later. Justin gave a written statement to Officer Kenny Lynch and turned over the stolen property. Kathleen Micun testified that her CD radio and two coolers which belonged to the Senior Nutrition Center in Davidson were missing. The trial court denied the juvenile's motion to dismiss at the close of the State's evidence.
    The juvenile testified that he walked away after Justin broke the church's window on the night in question. He saw the police coming and yelled to Justin, “Come on. Police! Police!” The juvenile then ran down the railroad tracks. Justin testified that the juvenile walked away after he broke the church's window. Justin subsequently told police that he did not find anything other than the CD radio before he went back out the window. He gave a statement to the police and turned over the CD radio to Officer Lynch.
    The juvenile renewed his motion to dismiss at the close of all the evidence. While no ruling was heard, apparently as a result of transcription problems, the trial court proceeded to closing arguments. After hearing the evidence, the trial court found beyond a reasonable doubt that the juvenile had committed both offenses. The trial court then proceeded to disposition and placed the juvenile on supervised probation for nine months. The juvenile appeals from the trial court's adjudication and disposition.
    The juvenile argues that the trial court erred by denying hismotion to dismiss the charge of felonious larceny because the State's evidence varied from the allegations of the juvenile petition. He contends that the adjudication and disposition orders must therefore be vacated. We agree.
    “[I]n order to withstand a motion to dismiss the charges contained in a juvenile petition, there must be substantial evidence of each of the material elements of the offense charged.” In re Bass, 77 N.C. App. 110, 115, 334 S.E.2d 779, 782 (1985). “The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference of fact which may be drawn from the evidence.” Id. Pursuant to N.C. Gen. Stat. § 14-72, larceny requires proof beyond a reasonable doubt that the defendant “(1) took the property of another; (2) carried it away; (3) without the owner's consent; and (4) with the intent to deprive the owner of his property permanently.” State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982). While the petition here alleged that the juvenile took “a CD radio and a cooler the personal property of New Friendship Presbyterian Church[,]” the State's only evidence as to ownership clearly established that the CD radio was the personal property of Ms. Micun. The State presented no conclusive evidence as to the cooler. Due to this fatal variance between the petition's allegations and the evidence presented at the adjudication hearing, we conclude that the juvenile's motion to dismiss should have been granted as to the charge of felonious larceny. In re Griffin, ___ N.C. App. ___, ___, 592 S.E.2d 12, 16 (2004). Accordingly, thejuvenile adjudication and disposition orders entered for felonious larceny must be vacated.
    The juvenile failed to address the two remaining assignments of error in his brief. Since he has neither cited any authority nor stated any reason or argument in support of those assignments of error, they are deemed abandoned. N.C.R. App. P. 28(b)(6) (2001). The adjudication and disposition orders as to the charge of felonious breaking and entering are therefore affirmed.
    Affirmed in part, vacated in part, and remanded for a new disposition hearing.
    Judges STEELMAN and THORNBURG concur.
    Report per Rule 30(e).

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