An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 6 September 2005
IN THE MATTER OF:
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.
) 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.
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
The juvenile appeals.
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
State v. Ellis, ___ N.C. App. ___, ___, 608 S.E.2d 803, 807 (2005)
and citations omitted).
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)
and citation omitted); see N.C. Gen. Stat. §
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)
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
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
The trial court did not err in denying the
juvenile's motion to dismiss. This assignment of error is
IV. Delinquent Adjudication
The juvenile argues the trial court erred by adjudicating him
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
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
MCCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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