An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 21 June 2005
IN THE MATTER OF: Robeson County
No. 02 J 330
Appeal by the juvenile from order entered 19 December 2003 by
Judge James Gregory Bell in Robeson County District Court. Heard
in the Court of Appeals 16 February 2005.
Attorney General Roy Cooper,
by Assistant Attorney General
Nancy E. Scott
, for the State.
Geoffrey W. Hosford for juvenile-appellant.
A.L.B. ("the juvenile") appeals from the trial court's 19
December 2003 Juvenile Adjudication and Disposition Order, which
adjudicated him delinquent of felonious larceny. As part of its
dispositional order, the court directed A.L.B. to pay $3,000.00 in
restitution. Because the trial court failed to make findings of
fact regarding whether restitution is in the juvenile's best
interest and whether the juvenile has or reasonably could acquire
the means to pay this restitution, we vacate this portion of the
dispositional order and remand for further proceedings consistent
with this opinion. We affirm the 19 December 2003 order in all
Facts and Procedural Background
The State filed two separate juvenile petitions alleging that
A.L.B. was delinquent: (1) a petition charging felony larceny of
a motor vehicle owned by Stephen Benson and (2) a petition charging
felony breaking and entering of the home of Loretta Smith and
felony larceny of rings owned by Smith. While both trials were
conducted on 16 December 2003 before Judge Bell, the court did not
join the petitions for trial because they were based upon two
In the trial on the petition alleging larceny of a motor
vehicle, the State's evidence tended to show that Stephen Benson
stopped at a convenience store on 27 August 2002. When he went
inside to get a drink, Benson left his keys inside his truck and
someone stole the truck. Benson testified that he had seen A.L.B.
inside the store that day. Additionally, court counselor Timothy
Ray testified that he and court counselor Keith Bullard saw A.L.B.
driving a truck dangerously that same day. Ray and Bullard
followed A.L.B., who was 15 years old, until they found the truck
backed into a ditch. The court counselors arrested A.L.B. At
trial, A.L.B. did not present any evidence. Following the trial,
the court orally adjudicated A.L.B. delinquent for unauthorized use
of a motor vehicle.
The State then proceeded to trial on the petition charging the
juvenile with felony larceny of Loretta Smith's rings and felony
breaking and entering. Amelia Huggins, who lived across the street
from A.L.B., testified that towards the beginning of July 2003,A.L.B. came to her house and removed five rings from his pocket.
A.L.B. told Huggins that he had found the rings in Huggins' yard
beside a car. He gave them to Huggins without asking for anything
A couple of weeks later, Loretta Smith, who lives in a house
behind Huggins, told Huggins that sometime around the beginning of
July, she had noticed that 10 to 12 of her rings were missing.
When Huggins showed Smith the rings that A.L.B. had given her,
Smith identified them as her rings.
Smith testified that on approximately 4 July 2003, she was
cutting her grass and left her back door open. Smith saw A.L.B. in
her yard that day, but never saw him go into her house. Smith
testified that there were 12 rings in total missing from her home
and that the five recovered were the least valuable of them.
The juvenile did not offer any evidence. The court orally
adjudicated A.L.B. delinquent on the charge of felony larceny based
upon the doctrine of recent possession. The court, however,
dismissed the charge of felony breaking and entering because
"there's other people that could've gone in and _ and taken the
The court then proceeded to the dispositional phase, in which
the court heard evidence on the value of Smith's rings. Smith
claimed that the value of her rings was $4,000.00 and that her
insurance paid her $1,000.00. The police report stated that the
value of the unrecovered property was $2,375.00 and the value of
the recovered property was $825.00. Keith Bullard, a court counselor, testified that he began
supervising A.L.B. in October 2002 after A.L.B. was adjudicated
delinquent for simple possession of marijuana and simple assault.
Bullard testified that the juvenile was also adjudicated delinquent
for common law robbery in April 2003. During Bullard's
supervision, A.L.B. had received psychiatric therapy through Youth
Enrichment Services, substance abuse counseling through the
schools, and private psychiatric counseling. At the time of the
dispositional hearing, A.L.B. was taking various psychiatric
medications. In addition, testing had revealed that the juvenile
had an IQ score of 56. At one point, A.L.B. was temporarily placed
at the Timberwood group home, but he had to be removed when he was
shot in the leg. Although A.L.B. was a student at Lumberton Senior
High School, he had a broken hip from being hit by a car and had
recently been placed on home bound services.
On 19 December 2003, the court entered a single Juvenile
Adjudication and Disposition Order with respect to the charges in
both petitions. Under the dispositional portion of that order,
A.L.B. was required to complete an additional six months of
probation, cooperate with psychological therapy or counseling, and
spend 14 days in juvenile detention at the discretion of his court
counselor. The court also ordered A.L.B. to pay $3,000.00 in
restitution for the use and benefit of Loretta Smith. A.L.B. filed
a notice of appeal on 17 December 2003. A.L.B. has limited his
appeal to the charge of felony larceny of Smith's rings and the
order of restitution.
The juvenile's first assignment of error contends that the
trial court erred by considering evidence from outside the record
in adjudicating the juvenile delinquent of felony larceny of
Smith's rings. The juvenile points to an exchange during closing
arguments when the juvenile's counsel argued that there was no
evidence presented showing a breaking and entering:
MS. HENDERSON: . . . [The district
attorney] doesn't know who went into that
house. Anybody could've gone into that house.
THE COURT: See, see that argument would
go better if I hadn't heard that he hopped in
the truck and drove off at the convenient
MS. HENDERSON: You're not supposed to do
that, Your Honor. It's not in the evidence
here, for this case, Your Honor. That's why
we get [a] separate trial.
The juvenile argues that he was prejudiced because the court
considered evidence from the motor vehicle case as part of its
determination of the second, but separate, petition.
A review of the full record, however, reveals that the trial
court was persuaded by the juvenile's argument at trial and did not
rely upon the evidence from the prior hearing on the first
petition. In adjudicating the second petition, the court found
A.L.B. delinquent of felony larceny based upon the doctrine of
recent possession, which allows a court "'to infer that the
possessor of certain stolen property is guilty of larceny.'" State
v. Osborne, 149 N.C. App. 235, 238, 562 S.E.2d 528, 531 (quoting
State v. Pickard, 143 N.C. App. 485, 487, 547 S.E.2d 102, 104,disc. review denied, 354 N.C. 73, 553 S.E.2d 210 (2001)), aff'd per
curiam, 356 N.C. 424, 571 S.E.2d 584 (2002). It was undisputed
that A.L.B. had possession of Smith's rings. The judge, however,
dismissed the charge of felony breaking and entering because
"there's other people that could've gone in and _ and taken the
rings out." This conclusion _ that anyone could have taken the
rings _ is precisely the point that the juvenile's attorney made
when the judge referred to evidence from the previous adjudication.
Since the judge found that there was not enough evidence of
breaking and entering, as argued by the juvenile's trial counsel,
the record contains no indication that the trial court relied upon
evidence from the prior adjudication to the detriment of the
juvenile. Therefore, we overrule this assignment of error.
The juvenile next argues that the court erred by (1) allowing
Loretta Smith to testify that her neighbors told her that they had
items missing from their homes and (2) allowing Smith to offer her
opinion that the juvenile stole her rings. Assuming arguendo that
the trial court should have excluded the evidence, the juvenile has
not shown that the court relied upon this evidence in reaching its
When improper evidence is admitted at a bench trial, an
appellant must show that the court relied upon the improper
evidence to his detriment. "In a nonjury trial, if incompetent
evidence is admitted and there is no showing that the judge acted
on it, the trial court is presumed to have disregarded it." In reOghenekevebe, 123 N.C. App. 434, 438, 473 S.E.2d 393, 397 (1996).
The effect of this presumption "is that the burden rests on the
juvenile to rebut the presumption that any incompetent evidence was
disregarded and demonstrate prejudice. This burden applies even
where the evidence was admitted over objection." In re Hartsock,
158 N.C. App. 287, 290, 580 S.E.2d 395, 398 (2003) (emphasis added)
(internal citations omitted).
In this case, the juvenile fails to show how the trial court
relied upon the questioned evidence. His brief simply argues that
the order should be reversed because the evidence was admitted.
The trial court did not reference the challenged evidence in either
its written or oral rulings. Further, the trial court's ultimate
decision _ to dismiss the breaking and entering charge and base the
larceny adjudication on the recent possession doctrine _ suggests
that the trial court did not rely on the evidence. The juvenile
has, therefore, failed to rebut the presumption that the trial
court disregarded any improper evidence.
The juvenile's final argument is that the trial court erred by
ordering the juvenile to pay restitution in the amount of $3,000.00
without making any findings of fact that this amount (1) was within
the juvenile's ability to pay; (2) was fair and reasonable; and (3)
was in the juvenile's best interests. The State has conceded that
the trial court erred in this respect.
As part of a dispositional order, a court may order a juvenile
to pay restitution, complete or partial, to a person who hassuffered a loss due to the juvenile's actions. In re Schrimpsher
143 N.C. App. 461, 464, 546 S.E.2d 407, 410 (2001). See also
Gen. Stat. § 7B-2506(22) (2003) (one punishment option for a
delinquent juvenile is to "[r]equire restitution of more than five
hundred dollars ($500.00), full or partial, payable within a
12-month period to any person who has suffered loss or damage as a
result of an offense committed by the juvenile"). Even though
restitution may be used to compensate a victim, this Court has
stated that "'compensation of victims should never
become the only
or paramount concern in the administration of juvenile justice.'"
In re Heil
, 145 N.C. App. 24, 31, 550 S.E.2d 815, 821 (2001)
(quoting In re Register
, 84 N.C. App. 336, 339, 352 S.E.2d 889, 891
In order to be valid,
[a]n order of restitution must be supported by
the record, which demonstrates that the
condition is fair and reasonable, related to
the needs of the child, and calculated to
promote the best interest of the juvenile in
conformity with the avowed policy of the State
in its relation with juveniles. Further, the
court shall not require the juvenile to make
restitution if the juvenile satisfies the
court that he does not have, and could not
reasonably acquire, the means to make
, 143 N.C. App. at 464, 546 S.E.2d at 410
citations and quotation marks omitted). Accordingly, an order
requiring restitution "'must
be supported by the record and
appropriate findings of fact which demonstrate that the best
interest of the juvenile will be promoted by the enforcement of thecondition.'" Heil
, 145 N.C. App. at 31, 550 S.E.2d at 821 (quoting
In re Berry
, 33 N.C. App. 356, 360, 235 S.E.2d 278, 280-81 (1977)).
In this case, the trial court failed to make the required
findings of fact regarding (1) the juvenile's ability to pay
restitution, (2) whether the amount of restitution was fair and
reasonable, and (3) whether restitution was in the juvenile's best
interests. The only indication that the trial court even
considered these factors is the court's statement during the
hearing that when the weather got warmer and the juvenile was
"hopefully" off crutches, he could "start finding some odd jobs.
You're a big fella you ought to be able to do some work around
somewhere." These statements, even if incorporated in findings of
fact, are not sufficient to show that the juvenile could earn the
$3,000.00 owed for restitution during a 12-month period.
Significantly, at the time of the disposition, the juvenile was in
school, on crutches, and had significant mental and psychiatric
limitations. In short, the trial court's order of restitution is
neither supported by the necessary findings of fact nor the
It appears that the trial court may have based the amount of
restitution awarded on a desire to compensate the victim. The
restitution amount _ $3,000.00 _ equals the difference between the
value placed on the rings by the victim and the amount she received
from insurance. A restitution order cannot, however, be solely
based on a concern to ensure compensation of the victim without"consideration for or adjustment based upon [a] juvenile's best
interest or his ability to pay." Id.
at 32, 550 S.E.2d at 821.
Accordingly, we remand this case to the trial court on the
issue of restitution. In doing so, the court is to consider and
make appropriate findings on the following issues: (1) whether the
amount of restitution _ in essence the amount claimed by the victim
_ is fair and reasonable, (2) whether the juvenile has the ability
to pay the restitution amount considering his age and mental and
physical capacity, and (3) whether the restitution order is in the
juvenile's best interests. We affirm the Juvenile Adjudication and
Disposition Order in all other respects.
No error in part, remanded in part.
Judges McGEE and TYSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***