An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-371


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.

    GEER, Judge.

    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 other respects.

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 unrelated incidents.
    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 in return.
    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 rings out."
    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 [sic] store.

            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 decision.
    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 N.C. 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 (1987)).
    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 restitution.

Schrimpsher, 143 N.C. App. at 464, 546 S.E.2d at 410 (internal 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 evidence.
    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).

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