An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1297


Filed: 17 August 2004

B.J.M.,                                    Alamance County
a minor.                                    No. 00 J 110   & nbsp;                    

    Appeal by respondent from order entered 24 February 2003 by Judge Bradley Reid Allen, Sr., in Alamance County District Court. Heard in the Court of Appeals 9 June 2004.

    Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State.

    Thomas E. Fulghum for respondent appellant.

    McCULLOUGH, Judge.

    Respondent B.J.M. appeals after being adjudicated delinquent for the offenses of concealment of merchandise and possession of a malt beverage while being under the age of twenty-one. The State's evidence tended to show that James Lewis was working as a loss prevention officer at the K-Mart on Huffman Mill Road in Burlington, North Carolina, on 24 January 2003. While watching the live video surveillance equipment, Lewis saw respondent take some beers and put them inside his jacket. Lewis then saw respondent walk into the bathroom.
    Lewis followed respondent into the bathroom and pretended to wash his hands until respondent left the middle stall and exited. Lewis retrieved two Coronas from the toilet. He decided to wait for respondent near the exit doors. When respondent tried to leavethe store, Lewis told him that he was aware of the beers in his pocket. At that point, Lewis took respondent to the loss control office and asked him about the beers. Respondent handed Lewis the other beers that remained in his coat pocket. Because respondent could not provide identification, Lewis called the police.
    Officer David Turner of the Burlington Police Department arrived at the K-Mart. He then took a report and obtained identifying information, including respondent's date of birth. When the prosecutor asked if respondent was born on 25 October 1987, Officer Turner stated, “that sounds right.” The prosecutor showed Officer Turner a copy of the police report, and Officer Turner confirmed that 25 October 1987 was the correct date of birth.
    Respondent made a motion to dismiss at the close of the State's evidence; he asserted insufficiency of the evidence regarding age. The trial court denied the motion and adjudicated respondent delinquent. After reviewing the predisposition report, the judge ordered respondent into secure custody in a youth development center not to exceed his eighteenth birthday. Respondent appeals.
    On appeal, respondent argues that the trial court erred by (1) denying respondent's motion to dismiss, (2) failing to exclude evidence of respondent's age ex mero motu, (3) committing respondent to a youth development center, and (4) rejecting respondent's release pending appeal. Respondent also claims that he is entitled to a new trial because of ineffective assistance ofcounsel. We reject these contentions and affirm the decision of the trial court.

I. Motion to Dismiss    
    Respondent argues that the trial court erred by denying his motion to dismiss because the State failed to present sufficient evidence showing that respondent was under the age of twenty-one at the time of the offense.
    In ruling on a motion to dismiss, the trial judge must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The Court must find that there is substantial evidence of each element of the delinquent act and of respondent's perpetration of such act. Id. “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id.
In the present case, the juvenile petition alleged that petitioner was delinquent for possessing a malt beverage while being under the age of twenty-one. Pursuant to N.C. Gen. Stat. § 18B-302(b)(1) (2003), the State had to prove two things beyond a reasonable doubt: (1) that respondent possessed a malt beverage and (2) that he was under the age of twenty-one at the time of possession. Respondent does not contest the first element, but claims that the State failed to prove that he was under twenty-one at the time of the offense. We disagree.
    The State did offer substantial evidence of defendant's age. Officer Turner testified that defendant's date of birth was 25October 1987 and that respondent's mother verified this information at the scene. Since the offense occurred on 24 January 2003, respondent was fifteen years old at the time of the offense.
    Respondent argues that this testimony was improperly admitted as hearsay. However, to be preserved for appeal, a party must object to the evidence at trial when it is first admitted. State v. Davis, 353 N.C. 1, 19, 539 S.E.2d 243, 256 (2000), cert. denied, 534 U.S. 839, 151 L. Ed. 2d 55 (2001). At trial, respondent failed to object to this testimony. For this reason, the admission of the evidence is not properly before this Court, and we reject this assignment of error.
II. Failing to Intervene Ex Mero Motu
    Respondent argues that in light of his failure to object, the trial court should have excluded the testimony ex mero motu. However, “[w]here, as here, a criminal defendant [or juvenile respondent] fails to object to the admission of certain evidence, the plain error analysis, rather than the ex mero motu or grossly improper analysis, is the applicable standard of review.” State v. Ridgeway, 137 N.C. App. 144, 147, 526 S.E.2d 682, 685 (2000). Under plain error review, if “we are not persuaded that the jury probably would have reached a different result had the alleged error not occurred, we will not award defendant a new trial.” Id.     In this case, respondent cannot establish that a different result would have occurred absent the alleged error. Officer Turner's testimony was not the only evidence of respondent's age. In fact, respondent's age was verified in numerous documentsthroughout the record, including previous adjudications in which the court established age. Furthermore, the fact that the trial was in a juvenile court is significant. By definition, a “juvenile” is “any person who has not reached the person's eighteenth birthday and is not married, emancipated, or a member of the armed forces of the United States.” N.C. Gen. Stat. § 7B-1501(17) (2003) (emphasis added). Therefore, to be in juvenile court, respondent must be below the age of eighteen.
    Finally, we note that respondent was physically present in court, and the trial judge could have observed respondent's appearance when trying to determine his age. Although our appellate courts have stated that age cannot be determined solely by observing the accused in the courtroom, the rule only applies when the trier of fact does not have the benefit of other circumstantial or direct evidence. In re Jones, 135 N.C. App. 400, 405, 520 S.E.2d 787, 789 (1999). This principle was verified in State v. Ackerman, 144 N.C. App. 452, 551 S.E.2d 139, cert. denied, 354 N.C. 221, 554 S.E.2d 344 (2001). There, this Court noted that the jury could determine defendant's age by combining its observations of defendant in court with additional circumstantial evidence. Id. at 462, 551 S.E.2d at 146.     
    Here, the numerous pieces of circumstantial evidence, combined with the trial judge's observations of respondent in court, lead to the conclusion that respondent was under the age of twenty-one at the time he possessed the malt beverages. Therefore, even if Officer Turner's testimony was admitted erroneously, the courtwould not have reached a different result absent the error. This assignment of error is denied.    (See footnote 1) 
III. Committing Respondent to a Youth Development Center
    Respondent contends that the trial court erred by committing him to a youth development center. “Under the Juvenile Code, the trial court must consider the juvenile's delinquency history level as well as the classification of the current offense in determining the appropriate disposition limit in a juvenile proceeding.” In re Allison, 143 N.C. App. 586, 597, 547 S.E.2d 169, 175 (2001). Pursuant to N.C. Gen. Stat. § 7B-2508(e) (2003):
        A court exercising jurisdiction over a juvenile who has been adjudicated delinquent and for whom the dispositional chart in subsection (f) of this section prescribes a Level 3 disposition shall commit the juvenile to the Department for placement in a youth development center in accordance with G.S. 7B-2506(24).

Further, “a juvenile who has been adjudicated for a minor offense may be committed to a Level 3 disposition if the juvenile has been adjudicated of four or more prior offenses.” N.C. Gen. Stat. § 7B- 2508(g) (2003). When the trial court has a choice of dispositional levels, the trial court's choice will not be vacated absent a showing of abuse of discretion. In re Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002). The trial court abuses its discretion when its ruling “'“is so arbitrary that it could nothave been the result of a reasoned decision.”'” Id. (citations omitted).
    We believe that the trial judge did not abuse his discretion by committing respondent to a youth development center. Respondent had a lengthy history of previous offenses including felony breaking and entering, two counts of felony larceny, driving to endanger, and speeding to elude arrest. Furthermore, since this was respondent's fifth adjudication in juvenile court, he could be committed to a Level 3 disposition. Finally, the trial judge's decision follows the exact recommendation found in the predisposition report which states:
            Due to [the] juvenile's extensive delinquent history in Juvenile Court and the many resources attempted to deter his undisciplined and delinquent actions unsuccessfully, it is therefore recommended that he be committed to the Department of Juvenile Justice and Delinquency Prevention for placement in one of their state-wide Youth Development Centers for a period of time not to exceed his eighteenth birthday.

Based on the foregoing, we conclude that there was no abuse of discretion. This assignment of error is overruled.
IV. Release of Respondent Pending Appeal
    Respondent argues that the trial court erred by denying his release pending appeal. However, this issue is not properly before this Court. Under N.C.R. App. P. 10(a)(2004), “the scope of review on appeal is confined to a consideration of those assignments of error set out in the record[.]” Since this issue was not includedas one of respondent's assignments of error, it is deemed abandoned.
V. Ineffective Assistance of Counsel    
    Respondent claims that he is entitled to a new trial because he was denied effective assistance of counsel. “A defendant's right to counsel includes the right to the effective assistance of counsel.” State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985). “When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness.” Id. at 561-62, 324 S.E.2d at 248. To meet this burden, defendant must prove that (1) his counsel's performance was deficient and (2) the deficient performance resulted in prejudice. Id. at 562, 324 S.E.2d at 248. “The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings.” Id. at 563, 324 S.E.2d at 248.
    Respondent is not entitled to a new trial because he has not shown that his counsel's performance resulted in prejudice. Most of respondent's argument deals with his counsel's failure to object to Officer Turner's testimony regarding evidence of respondent's age. We consider this argument unavailing, especially in light of the other sources which confirmed that respondent was under the age of twenty-one at the time of the offense. Therefore, we fail tosee how, but for counsel's alleged errors, the result would have been different.
    Respondent also criticizes counsel for the number of objections and motions made at trial. These arguments are meritless because trial counsel is given wide latitude in determining trial strategy and tactics. In re Clapp, 137 N.C. App. 14, 23, 526 S.E.2d 689, 696 (2000). Finally, we are guided by principles our Supreme Court articulated thirty years ago:
            The Courts rarely grant relief on the grounds here asserted [ineffective assistance of counsel], and have consistently required a stringent standard of proof on the question of whether an accused has been denied Constitutionally effective representation. We think such a standard is necessary, since every practicing attorney knows that a “hindsight” combing of a criminal record will in nearly every case reveal some possible error in judgment or disclose at least one trial tactic more attractive than those employed at trial. To impose a less stringent rule would be to encourage convicted defendants to assert frivolous claims which could result in unwarranted trial of their counsels.

State v. Sneed, 284 N.C. 606, 613, 201 S.E.2d 867, 871-72 (1974).     In sum, we are not persuaded that respondent has made a viable claim for ineffective assistance of counsel. Accordingly, this assignment of error is denied.
    After reviewing the record, briefs, transcript, and arguments of the parties, we believe that the trial court acted properly in all respects. Therefore, the trial court's decision is
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    Significantly, respondent acknowledges that he was under the age of twenty-one at the time of the offense. In arguing that the judge erred in committing respondent to a youth development center, respondent's brief mentions that “[a]t the time of the hearing, [r]espondent was 15 years old.”

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