An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1478


Filed: 6 September 2005

H.M.L.                        Durham County
                            No. 04 J 102

    Appeal by juvenile from orders entered 21 June 2004 by Judge Marcia H. Morey in Durham County District Court. Heard in the Court of Appeals 17 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Judith Tillman, for the State.

    Daniel Shatz, for juvenile-appellant.

    TYSON, Judge.

    H.M.L. (the “juvenile ”) appeals from adjudication and dispositional orders finding him responsible for assault with a deadly weapon inflicting serious injury in violation of N.C. Gen. Stat. § 14-32(b) and placing him on level II supervised probation for one year. We affirm.

I. Background
    On 28 April 2004, the juvenile visited his friend, M.E., at the home of M.E.'s grandmother. The juvenile was carrying a loaded shotgun when he arrived. M.E. tried, but failed, to convince the juvenile to leave the shotgun at his grandmother's home. Thejuvenile placed the shotgun in his pants and walked with M.E. to the victim's house. Upon entering and ascending the stairs of the victim's house, the juvenile pulled the shotgun out of his pants. The victim requested the juvenile to unload the shotgun and the juvenile appeared to comply with the victim's request. The juvenile purportedly unloaded the gun and the victim placed the gun in her closet.
    Around 2:30 a.m., the victim told the juvenile and M.E. that she was tired and suggested they leave. As the juvenile and M.E. prepared to leave the victim's house, M.E. removed the shotgun from the closet and handed it to the juvenile. While juvenile was holding the shotgun, it discharged. After the shotgun fired, the victim testified she turned around, the juvenile dropped the shotgun, and fled.
    Later, the victim was informed by her sister that she had been shot. The victim looked into her mirror saw no bleeding, but felt a burning in her back. Two pellets from the shotgun blast had penetrated the victim's left lung. The victim was transported to Duke Hospital for treatment.
    On 21 June 2004, the juvenile was found responsible for assault with a deadly weapon inflicting serious injury . The trial court adjudicated the juvenile to be delinquent and placed him on probation. The juvenile appeals.
II. Issues
    The juvenile argues the trial court erred by: (1) denying his motion to dismiss for insufficient evidence at the close of the State's evidence; and (2) adjudicating him delinquent when the court's findings of fact fail to support such a conclusion of law.
III. Motion to Dismiss
A. Standard of Review
    Our standard of review on a motion to dismiss criminal charges in an adult trial equally applies to a motion to dismiss a juvenile delinquency petition for insufficient evidence. In re Heil, 145 N.C. App. 24, 28, 550 S.E.2d 815, 819 (2001).
        Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.

        Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. If substantial evidence, whether direct, circumstantial, or both, to support a finding that the offense charged has been committed and that the defendant committed it, the motion to dismiss should be denied and the case goes to the jury.

        . . . .

        In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference fromthe evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness's credibility. It is concerned only with the sufficiency of the evidence to carry the case to the jury. Ultimately, the court must decide whether a reasonable inference of defendant's guilt may be drawn from the circumstances.

State v. Ellis, ___ N.C. App. ___, ___, 608 S.E.2d 803, 807 (2005) (internal quotations and citations omitted).
B. Analysis
        The elements of assault with a deadly weapon inflicting serious injury are:

        (1) an assault, (2) with a deadly weapon, (3) inflicting serious injury, (4) not resulting in death. We have defined assault as an overt act or attempt, with force or violence, to do some immediate physical injury to the person of another, which is sufficient to put a person of reasonable firmness in fear of immediate physical injury. A deadly weapon is any article, instrument or substance which is likely to produce death or great bodily harm.

State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922 (2000) (internal quotations and citation omitted); see N.C. Gen. Stat. § 14-32 (2003).
    Our Supreme Court has held,
        [t]he operator of a motor vehicle may be convicted of an assault with a deadly weapon when, by means thereof, he strikes and injures a person, provided there is either (1) an actual intent to inflict injury, or (2)culpable or criminal negligence from which such intent may be implied.
State v. Eason, 242 N.C. 59, 65, 86 S.E.2d 774, 778 (1955) (citations omitted) .
        The negligence must be something more than is required on the trial of an issue in a civil action, but it is sufficient to carry the case to the jury in a criminal prosecution where it reasonably appears that death or great bodily harm was likely to occur. A want of due care or a failure to observe the rule of the prudent man, which proximately produces an injury, will render one liable for damages in a civil action . . . .
State v. Rountree, 181 N.C. 535, 538, 106 S.E. 669, 671 (1921) (internal citations omitted); see State v. Early, 232 N.C. 717, 720, 62 S.E.2d 84, 86-87 (1950) . “'Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.'” State v. Weston, 273 N.C. 275, 280, 159 S.E.2d 883, 886 (1968) (quoting State v. Cope, 204 N.C. 28, 30, 167 S.E. 456, 458 (1933); State v. Whaley, 191 N.C. 387, 390, 132 S.E. 6, 8 (1926); Rountree, 181 N.C. at 538, 106 S.E. at 271).
    Here, the victim was shot in the back by the discharge from the juvenile's shotgun which caused serious injury when two pellets penetrated her lungs. The juvenile was illegally in possession of a concealed weapon when he went to the victim's house. Thejuvenile entered the house with the shotgun loaded. He proceeded upstairs to where several other juveniles were present. While evidence does not show whether the juvenile failed to fully unload the shotgun or whether he reloaded the shotgun as he was leaving, the evidence tends to show the juvenile handled the shotgun carelessly, recklessly, and allowed the shotgun to discharge in the victim's room upstairs with several juveniles present. The juvenile's reckless or careless conduct imports thoughtless disregard of consequences and heedless indifference to the safety and rights of the other juveniles in the room which implies intent through “culpable negligence and the resulting criminal responsibility.” Weston, 273 N.C. at 280, 159 S.E.2d at 886; see Eason, 242 N.C. at 65, 86 S.E.2d at 778.
    Considering the evidence in the light most favorable to the State, substantial evidence tends to show the essential elements of the charged offense and the juvenile was the perpetrator of the crime charged. The trial court did not err in denying the juvenile's motion to dismiss. This assignment of error is overruled.
IV. Delinquent Adjudication
    The juvenile argues the trial court erred by adjudicating him delinquent when the findings of fact fail to support such a conclusion of law.     No statute requires the trial court to make written findings of fact under these circumstances. Under N.C. Gen. Stat. § 7B- 1501(7) (2003), a delinquent juvenile is “[a]ny juvenile who, while less than 16 years of age but at least 6 years of age, commits a crime or infraction under State law or under an ordinance of local government, including violation of the motor vehicle laws.” This Court has held, “[c]learly since there was sufficient evidence to convict appellant of the crime alleged in the petition, then there was sufficient evidence to permit a finding that appellant is a delinquent child . . . .” State v. Rush, 13 N.C. App. 539, 546, 186 S.E.2d 595, 600 (1972).
    The juvenile was fourteen at the time of the shooting and was found responsible of assault with a deadly weapon inflicting serious injury. Having been a minor convicted of violating a felony causing personal injury under a North Carolina criminal statute, the juvenile meets the definition of “delinquent.” Id. ; N.C. Gen. Stat. § 7B-1501(7) .
    The trial court did not err by adjudicating the juvenile delinquent as a matter of law. This assignment of error is overruled.
V. Conclusion
    Sufficient evidence establishes the elements of assault with a deadly weapon inflicting serious bodily injury. The juvenile wasfound to be responsible for the charged crime. The trial court properly determined he was delinquent. The trial court's orders are affirmed.
    Judges MCCULLOUGH and BRYANT concur.
    Report per Rule 30(e).

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