In The Matter of: D.E.L., (04-1430) 08/02/2005

Appeal by juvenile from orders entered 15 January 2004 by Judge J. Kent Washburn in Alamance County District Court. Heard in the Court of Appeals 15 June 2005.

Attorney General Roy Cooper, by Assistant Attorney General Lori A. Kroll, for the State.

George E. Kelly, III, for juvenile-appellant.

TYSON, Judge.

D.E.L. (“juvenile”) appeals from adjudication and dispositional orders finding him delinquent for: (1) a class I felony, attempting to break or enter a residence in violation of N.C. Gen. Stat. § 14-54(b); and (2) a class A1 misdemeanor, by attempting to break or enter a motor vehicle in violation of N.C. Gen. Stat. § 14-56. We affirm in part, reverse in part, and remand.

    On 18 October 2003, C.P., a nine-year-old boy, observed D.E.L. and one other boy on the property of Kenneth Norris (“Norris”). C.P. observed the two boys looking into the windows of Norris's mobile home and at Norris's vehicle parked close by. C.P. stated he observed only one of the boys “trying to get into the door.” C.P. stated he did not know which of the two boys was actually looking into the window of Norris's home. C.P. recognized one of the boys as D.E.L., with whom he attended school. C.P. and his mother, (“K.M.”), stated both boys were about the same size and wore hooded coats.
    K.M. testified she exited her home to get her son and noticed two boys across the street and called the sheriff's department. K.M. observed the boys trying to open a window of Norris's mobile home. Both fled when they saw her. At trial, K.M. testified she could not identify D.E.L. as one of the boys she observed trying to gain entry to Norris's mobile home or his vehicle.
    D.E.L.'s fifteen-year-old brother and grandfather testified D.E.L was home all day on restriction for earlier discipline problems at school. Both testified the only time D.E.L. left the house was when he accompanied them to pick up a friend between 6:00 and 7:00 p.m.
    Two juvenile petitions were issued alleging D.E.L. was a “delinquent” for offenses committed on 18 October 2003. The petitions alleged D.E.L. committed: (1) a class I felony, attempting to break or enter a residence in violation of N.C. Gen. Stat. § 14-54(b); and (2) a class A1 misdemeanor, by attempting to break or enter a motor vehicle in violation of N.C. Gen. Stat. § 14-56. On 15 January 2004, D.E.L. was found to be responsible for both charges. The trial court found D.E.L. to be a level two disposition and ordered twelve months supervised probation. D.E.L. appeals.

D.E.L. argues the trial court erred in: (1) asserting jurisdiction over him in this matter by not filing the petitions within the statutory limit of thirty days; (2) allowing the State to proceed on and amend defective petitions; (3) denying D.E.L.'s motion to dismiss the charge of “attempted breaking or entering” when insufficient evidence establishes the elements of the crime; and (4) denying D.E.L.'s motion to dismiss the charge of “attempted breaking or entering of a motor vehicle” when insufficient evidence establishes the elements of the crime.
D.E.L. also argues the trial court committed plain error in: (1) intervening in the examination of witnesses; (2) finding D.E.L. at a “juvenile level 1 and 2 disposition” when a clerical error and findings of fact do not support a level two; and (3) entering a “juvenile adjudication order (delinquent)” inconsistent with the findings of fact.

    D.E.L. argues the trial court erred in asserting jurisdiction over him when the petitions were not filed within the statutory limit of thirty days.
    N.C. Gen. Stat. § 7B-1703(b) (2003) provides:
        Except as provided in G.S. 7B-1706, if the juvenile court counselor determines that a complaint should be filed as a petition, the counselor shall file the petition as soon as practicable, but in any event within 15 days after the complaint is received, with an extension for a maximum of 15 additional days at the discretion of the chief court counselor. The juvenile court counselor shall assist the complainant when necessary with thepreparation and filing of the petition, shall include on it the date and the words “Approved for Filing,” shall sign it, and shall transmit it to the clerk of superior court.
    Here, the only available complaint of criminal activity in the record is dated 19 November 2003, and signed by an employee of Alamance County Sheriff's Department. The intake counselor signed the petition on 2 December 2003. The lapse of time from 19 November to 2 December is less than the fifteen day maximum.
    The trial court did not err by asserting jurisdiction over D.E.L. when the petition was filed less than fifteen days from when the complaint was received in accordance with N.C. Gen. Stat. § 7B- 1703(b). This assignment of error is overruled.

    D.E.L. argues the trial court erred in allowing the State to amend and proceed on defective petitions. In N.C. Gen. Stat. § 7B-2400 (2003), the General Assembly sets forth certain restrictions regarding motions to amend juvenile petitions. “The court may permit a petition to be amended when the amendment does not change the nature of the offense alleged. If a motion to amend is allowed, the juvenile shall be given a reasonable opportunity to prepare a defense to the amended allegations.” Id. If the amendment requires respondent to reassess his defense, the court is required, if requested by the juvenile, to grant a continuance for a “reasonable” period of time to allow the juvenile to prepare a defense against the amended petition. Id. The phrase, “shall be given a reasonable opportunity to prepare a defense,” is a mandate to the juvenile court. See Blackmon v. N.C. Dept. of Correction,343 N.C. 259, 265-66, 470 S.E.2d 8, 12 (1996). N.C. Gen. Stat. § 7B-2400 does not require the court to grant a continuance on its own initiative.
    Here, D.E.L. failed to object to the amendment and did not request a continuance to reassess his defense. N.C. Gen. Stat. § 7B-2400. Our Supreme Court stated in State v. Leggett, a failure to except or object to errors at trial constitutes a waiver of the right to assert the alleged error on appeal. 305 N.C. 213, 219, 287 S.E.2d 832, 836 (1982) (citations omitted).
    D.E.L. failed to properly preserve this assignment of error for review and is dismissed.

The standard of review for denial of a juvenile's motion to dismiss for insufficient evidence is whether the State has offered substantial evidence to show the juvenile committed each element required to be convicted of the crime charged. In re Bass, 77 N.C. App. 110, 115, 334 S.E.2d 779, 782 (1985) (citation omitted). Substantial evidence is relevant evidence sufficient to persuade a rational fact finder to accept a conclusion. State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893, 899, cert. denied, 531 U.S. 994, 148 L. Ed. 2d 459, 121 S. Ct. 487 (2000) (citation omitted). When deciding a motion to dismiss for insufficient evidence, the evidence must be considered in the light most favorable to the State. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (Branch, C.J., dissenting).

    A person commits the crime of breaking and entering buildings if he violates N.C. Gen. Stat. § 14-54. Misdemeanor breaking and entering does not require an intent to commit a larceny or felony therein, but rather a breaking or an entering of any building without permission. See State v. Jones, 264 N.C. 134, 136, 141 S.E.2d 27, 29 (1965); see also State v. Freeman, 307 N.C. 445, 451, 298 S.E.2d 376, 380 (1983). The crime of attempt requires an act done with the specific intent to commit the underlying offense. See State v. Hageman, 307 N.C. 1, 13, 296 S.E.2d 433, 441 (1982); State v. Brayboy, 105 N.C. App. 370, 374, 413 S.E.2d 590, 593 (citation omitted), disc. rev. denied, 332 N.C. 149, 419 S.E.2d 578 (1992). “Unless a different classification is expressly stated, an attempt to commit a misdemeanor or a felony is punishable under the next lower classification as the offense which the offender attempted to commit.” N.C. Gen. Stat. § 14-2.5 (2003).
    The element of breaking may be met by a mere opening of a door or window, even if unlocked. State v. Shaw, 106 N.C. App. 433, 438-39, 417 S.E.2d 262, 266 (1992) (citations omitted).
        A breaking . . . constitutes any act of force, however slight, employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open, or closed. Thus, this Court has held that [t]he breaking of the store window, with the requisite intent to commit a felony therein, completes the offense even though the defendant is interrupted or otherwise abandons his purpose without actually entering the building. Thus, the dislocation of the door from its locked position was a sufficient breaking even if defendant did not otherwise enter the building.State v. Myrick, 306 N.C. 110, 114-15, 291 S.E.2d 577, 580 (1982) (internal quotations and citations omitted).
    C.P. observed two boys looking into the windows of Norris's mobile home and the windows of Norris's car. Cody testified he knew all the doors and windows were closed and locked on Norris's mobile home because he has observed in the past that Norris always locks his doors. One of the boys attempted to enter the mobile home through the door. K.M. testified she “saw the two young men . . . trying to get in the window of the mobile home” by “trying to raise the window of the mobile home.” C.P. identified D.E.L. as one of the boys present. The acts of looking into the windows of the mobile home, attempting to get into the mobile home through the door, and attempting to enter into the mobile home by trying to raise the window are evidence of an intent to commit the crime of misdemeanor breaking and entering. Myrick, 306 N.C. at 114-15, 291 S.E.2d at 580. Evidence shows the intent to commit the crime was carried beyond mere preparation but fell short of its actual commission. Id.; see also Hageman, 307 N.C. at 13, 296 S.E.2d at 441.
    Considering the evidence in the light most favorable to the State, sufficient evidence tends to show D.E.L. attempted to gain access to Norris's home by means of breaking. See N.C. Gen. Stat. § 14-54(b); see also Brown, 310 N.C. at 566, 313 S.E.2d at 587 (Branch, C.J. dissenting); see also Myrick, 306 N.C. at 114-15, 291 S.E.2d at 580.    The trial court did not err in denying D.E.L.'s motion to dismiss at the close of the State's evidence. This assignment of error is overruled.

    D.E.L. argues the trial court erred in denying D.E.L.'s motion to dismiss the charge of “attempted breaking or entering of a motor vehicle” when there was insufficient evidence to establish the elements of the crime.
    Unlike Jones and Freeman discussed above which involved a misdemeanor breaking and entering of a building, the specific statute for breaking and entering of a vehicle requires the State to prove the defendant “with intent to commit any felony or larceny therein, breaks or enters any . . . motor vehicle[,] . . . that person is guilty of a Class I felony.” N.C. Gen. Stat. § 14-56; see also N.C. Gen. Stat. §§ 14-53 and 14-54(a) (2003) (which require an intent to commit a larceny or felony therein); cf. N.C. Gen. Stat. § 14-54(b) (2003) (which does not require an “intent to commit a felony or larceny” but rather any person who wrongfully breaks and enters any building).
    The crime of attempt requires an act done with the specific intent to commit the underlying offense. See Hageman, 307 N.C. at 13, 296 S.E.2d at 441; Brayboy, 105 N.C. App. at 374, 413 S.E.2d at 593. In order to meet the element of any felony or larceny for the crime charged, there must be evidence introduced that the victim's vehicle contained items, even of trivial value. State v. McLaughlin, 321 N.C. 267, 270, 362 S.E.2d 280, 282 (1987) (wherethe record was devoid of evidence that the victim's vehicle contained any items of even trivial value, the trial court erred in submitting the issue of the defendant's guilt of this offense to the jury).
    Here, D.E.L. was identified by C.P. as one of the boys attempting to gain access to Norris's vehicle. He further testified one of the two boys was trying to gain access to the vehicle by pulling up on the door handle. The State failed to present any evidence regarding D.E.L.'s intent or that any items of value were located in Norris's vehicle that could establish the element of any felony or larceny therein of the crime charged. Id. at 270, 362 S.E.2d at 282.
    Considering the evidence in light most favorable to the State, insufficient evidence shows D.E.L. intended to commit a larceny or felony in the vehicle or items located in the vehicle to facilitate a larceny or felony therein. The trial court erred in not granting D.E.L.'s motion to dismiss at the close of the State's evidence. The trial court's order as to the charge of attempted breaking or entering of a motor vehicle is reversed.

    D.E.L. argues the trial court committed plain error when it intervened in the examination of witnesses.
    Under Rule 10(b)(1) of our Rules of Appellate Procedure,
        [a]ny such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be made the basisof an assignment of error in the record on appeal.
N.C.R. App. P. 10(b)(1) (2004).
        Rule 10 functions as an important vehicle to insure that errors are not 'built into' the record, thereby causing unnecessary appellate review. We have stated on numerous occasions, most recently in State v. Leggett, 305 N.C. 213, 287 S.E.2d 832 (1982), that a failure to except or object to errors at trial constitutes a waiver of the right to assert the alleged error on appeal.

State v. Oliver, 309 N.C. 326, 334, 307 S.E.2d 304, 311 (1983) (citations omitted).
    In State v. Odom, our Supreme Court adopted the plain error rule exception to Rule 10 of our Rules of Appellate Procedure. 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (applied to assignments of error regarding jury instructions). A defendant seeking plain error review must “specifically and succinctly” argue the alleged error committed by the trial court amounted to plain error. State v. Nobles, 350 N.C. 483, 514-15, 515 S.E.2d 885, 904 (1999), vacated and remanded, 357 N.C. 433, 584 S.E.2d 765 (2003). Our Supreme Court “has applied the plain error analysis only to instructions to the jury and evidentiary matters.” State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998), cert denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999).
    Although D.E.L. asserts plain error review, plain error review has not been extended to include a judge's interview of a witness and is unavailable to D.E.L. D.E.L. failed to take exception or object to the court examining the witnesses at trial and has waived review of this issue on appeal. See Oliver, 309 N.C. at 334, 307S.E.2d at 311 (“[A] failure to except or object to errors at trial constitutes a waiver of the right to assert the alleged error on appeal.”). This assignment of error is dismissed.

D.E.L. argues in his assignment of error number six that the trial court committed plain error by entering the “Juvenile Level 1 and 2 Disposition Order” because a “Level 2 Disposition” was not supported by the findings and is not ordered pursuant to N.C. Gen. Stat. § 7B-2508. D.E.L. also argues in his assignment of error number seven that the trial court committed error in finding him “delinquent.” D.E.L. further argues because the trial court ordered disposition levels contrary to the statutory mandate, his right of appeal is preserved automatically. See State v. Jones, 336 N.C. 490, 497, 445 S.E.2d 23, 26 (1994) (right to appeal is preserved, notwithstanding no objection at trial, because the trial court acted contrary to a statutory mandate).
In light of our holding vacating the breaking and entering of a motor vehicle charge and remand on the breaking and entering of a building, we do not address these assignments of error.

    The trial court properly asserted jurisdiction over D.E.L. when the petitions charging him with the crime were filed within fifteen days after the juvenile coordinator received the complaint. This Court is unable to hear D.E.L.'s defective petitions assignment of error due to D.E.L.'s failure to preserve his rightof appeal by taking exception to or objecting to an amendment to the petitions at trial.
    The trial court properly denied D.E.L.'s motion to dismiss at the close of the State's evidence on the charge of attempted breaking or entering a building when the State submitted substantial evidence to establish the elements of the crime.
    The trial court erred when it denied D.E.L.'s motion to dismiss at the close of the evidence on the charge of breaking or entering a vehicle. The State failed to proffer any evidence D.E.L. intended to commit a felony or larceny of Norris's vehicle or that the vehicle contained any property that would facilitate a felony or larceny. That part of the order is vacated.
    Plain error is not an applicable standard of review nor does it properly preserve D.E.L.'s claim that the trial court improperly interviewed witnesses.
    In summary, we affirm the trial court's order on all counts, except the breaking or entering a motor vehicle which is reversed, and this case is remanded for a disposition consistent with this opinion.
    Affirmed in Part, Reversed in Part, and Remanded.
    Judge MCCULLOUGH concurs.
    Judge BRYANT concurs in result only by separate opinion.
    Report per Rule 30(e).

IN THE MATTER OF:
D.E.L.                            Alamance County
                                No. 03 J 296

BRYANT, Judge, concurring in result.

I fully concur in most of the majority opinion but write separately to address a concern regarding N.C. Gen. Stat. § 14-56 (2003). As the majority states and I agree, the evidence in the instant case was insufficient to show the necessary “intent to commit a felony or larceny therein” element required for felonious breaking and entering of a motor vehicle. Here, the trial court found the juvenile responsible and sentenced him on the charge of “attempted misdemeanor breaking and entering a motor vehicle” under N.C.G.S. § 14-56, and deemed such offense a class A1 misdemeanor. N.C.G.S. § 14-56 only allows for felonious breaking and entering a motor vehicle. Because I do not find authority in our statutory or case law to allow sentencing someone based on a crime of “misdemeanor breaking and entering a motor vehicle”, I would reverse the trial court judgment on those grounds.

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