IN RE: B. R-D. Alamance County
No. 04 J 81
Attorney General Roy Cooper, by Assistant Attorney General
Jill A. Bryan and Special Deputy Attorney General William P.
Hart, for the State.
James M. Bell, for juvenile-appellant.
WYNN, Judge.
Where the district court selects a disposition for a juvenile
that is authorized by statute, this Court will not overturn its
decision unless it “is so arbitrary that it could not have been the
result of a reasoned decision.” In re Robinson, 151 N.C. App. 733,
737, 567 S.E.2d 227, 229 (2002) (citations and quotation marks
omitted). In this case, the trial court selected a disposition
within the authorized statutory range. Because we find no abuse of
discretion, we affirm the decision of the trial court.
A juvenile petition was filed 13 April 2004, alleging Juvenile
was involved in an affray at Broadview Middle School (Broadview) by
engaging in a fistfight with another student, C.J., on 2 February
2004. Although not included in the record on appeal, it appears
a second petition charged Juvenile with an affray at the school on3 September 2003. The district court adjudicated Juvenile
delinquent as to the incident on 2 February 2004, and imposed a
disposition which included twelve months of probation plus
counseling and community service. The court found Juvenile not
delinquent as alleged in the second petition. Juvenile gave notice
of appeal in open court.
C.J. testified that on 2 February 2004, she was approached by
Juvenile and her friend, I.H., in the Broadview cafeteria during
the lunch period. I.H. told C.J. that Juvenile wanted to know what
C.J.'s problem was. C.J. asked Juvenile what she meant and then
followed I.H. and Juvenile to a vending machine where Juvenile “got
something to drink.” C.J. again asked Juvenile what she meant by
asking what C.J.'s problem was. Juvenile walked past C.J., bumping
her “real hard” with her shoulder. C.J. responded by pushing
Juvenile. Juvenile dropped her drink and pushed C.J. to the
ground. When C.J. stood up, the two girls fought until they were
separated by a teacher and the school's principal, Dr. Meg Sheehan.
Sheehan testified that she was forced to physically intervene after
the girls ignored her verbal commands to stop fighting.
Sheehan also testified that on 3 September 2003, Juvenile
fought with B.J., who was a friend of C.J. Sheehan arrived after
the fight had been broken up by teachers. The girls continued to
yell profanity at each other while being restrained. Juvenile told
Sheehan that another girl had instigated the fight by pushing
Juvenile's hand into B.J.
Juvenile adduced testimony from I.H. regarding the fight on 2February 2004. I.H. stated that Juvenile saw C.J. staring at her
with the “bad eye” in the cafeteria. Because Juvenile did not
understand English, she asked I.H. to find out from C.J. “what is
her problem.” C.J. did not respond to I.H.'s query but followed
Juvenile when she went to get some water. C.J. asked Juvenile what
problem she had with her. Juvenile ignored C.J. and “turned around
to go sit down.” C.J. then hit Juvenile from behind. As the girls
looked at each other, C.J. pushed Juvenile again. Juvenile pushed
C.J. to the ground. When C.J. stood up, “she wanted to hit”
Juvenile. Juvenile “tried to defend herself and grabbed [C.J.] by
the hair.” The teachers then intervened and separated them.
Other witnesses, including Juvenile, testified regarding the
incident of 3 September 2003.
As noted above, the district court found the State had failed
to prove Juvenile was delinquent based upon her 3 September 2003
altercation with B.J. In adjudicating Juvenile delinquent for the
affray on 2 February 2004, the trial court noted the conflicting
evidence offered by C.J. and I.H. but found beyond a reasonable
doubt as follows:
. . . [T]he two juveniles, the two girls,
[C.J.] and [B. R-D.], pushed each other and
[Juvenile] pushed [C.J.] down. That when
[C.J.] got up, . . . they started swinging at
each other as testified to by the principal
who observed this. That the principal
immediately ran over, told them to stop.
Neither girl stopped. That both continued to
engage in a fight. That this the Court finds
is a public place, and it was to the terror of
the approximately 250 students in the
cafeteria. That the only time the girls
stopped fighting is when the principal and
another teacher physically separated them. The Court finds that this is an affray.
The court further found that Juvenile “initiated the altercation in
the cafeteria[,] [t]hat she had an opportunity to retreat, and she
chose to voluntarily engage in the fighting in the cafeteria.”
From the 3 November 2004 adjudication and disposition orders,
Juvenile appeals.
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Juvenile first argues that the trial court erred in finding
her delinquent for participating in an affray on 2 February 2004,
inasmuch as “the evidence established that [she] was acting in
self-defense and did not initiate the affray.” She characterizes
the trial court's finding that she initiated the fight with C.J. as
“contrary to the evidence” or, “at the very least,” as not proved
beyond a reasonable doubt. However, Juvenile did not move to
dismiss the delinquency petition at the conclusion of the State's
evidence or at the conclusion of all the evidence. She “is
therefore precluded from challenging the sufficiency of the
evidence presented at trial.” In re Davis, 126 N.C. App. 64, 66,
483 S.E.2d 440, 442 (1997) (citing State v. Elliott, 69 N.C. App.
89, 316 S.E.2d 632 (1984)); In re Rikard, 161 N.C. App. 150, 155,
587 S.E.2d 467, 470 (2003); N.C. R. App. P. 10(b)(3).
Moreover, to defeat a charge of affray based on self-defense,
a juvenile must be “without fault in provoking, engaging in, or
continuing a difficulty with another,” In re Wilson, 153 N.C. App.
196, 198, 568 S.E.2d 862, 863 (2002), and must retreat from any
non-felonious assault if she has the means to do so. State v.Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998).
Although the trial court did not determine who struck the first
blow in Juvenile's fight with C.J., it expressly found that
Juvenile “initiated the altercation in the cafeteria” and that she
“had an opportunity to retreat and she chose to voluntarily engage
in the fighting.” The State's evidence supported a finding that
Juvenile provoked and willingly participated in the fight in a
public area populated by approximately 250 students. See generally
Wilson, 153 N.C. App. at 198-99, 568 S.E.2d at 863 (noting that
“the credibility of the witnesses and the weight of the evidence
was for the trial court”); In re Drakeford, 32 N.C. App. 113, 118,
230 S.E.2d 779, 782 (1977) (defining affray as “a fight between two
or more persons in a public place so as to cause terror to the
people”).
Juvenile next claims that the trial court denied her
sufficient time to present a defense at the hearing, in violation
of her constitutional rights. See State v. Rogers, 352 N.C. 119,
125, 529 S.E.2d 671, 675 (2000) (“'To establish a constitutional
violation, a defendant must show that he did not have ample time to
. . . present his defense.'”) (quoting State v. Tunstall, 334 N.C.
320, 329, 432 S.E.2d 331, 337 (1993)). The transcript reveals,
however, that Juvenile's counsel did not request additional time
from the trial court to examine witnesses or to call additional
witnesses; nor did counsel assert any constitutional claim
concerning Juvenile's right to sufficient time to present a
defense. It is well established that “[c]onstitutional issues notraised and passed upon at trial will not be considered for the
first time on appeal.” State v. Lloyd, 354 N.C. 76, 86-87, 552
S.E.2d 596, 607 (2001); accord State v. Cummings, 352 N.C. 600,
613, 536 S.E.2d 36, 47 (2000), cert. denied, 532 U.S. 997, 149 L.
Ed. 2d 641 (2001). “Because [juvenile] did not raise these
constitutional issues at trial, [s]he has failed to preserve them
for appellate review and they are waived.” State v. Chapman, 359
N.C. 328, 366, 611 S.E.2d 794, 822 (2005).
We note the transcript reflects no denial by the trial court
of Juvenile's right to present her defense. Although the trial
court refused to allow Juvenile's mother to testify about an
unrelated incident involving C.J., which occurred some time after
3 September 2003, the trial court placed no other limitations on
Juvenile's evidence.
In her final assignment of error, Juvenile challenges the
trial court's decision to place her on twelve months of probation.
She concedes the trial court had discretion in setting the term of
probation but insists the trial court had no grounds to extend her
probation beyond six months, in light of her minor offense and
complete lack of delinquent history.
Based on her minor offense and low delinquency history,
Juvenile was subject to a Level I community disposition, to include
“any of the dispositional alternatives” set forth in section 7B-
2506(1)-(13) and (16) of the North Carolina General Statutes. N.C.
Gen. Stat. § 7B-2508 (2004). Under section 7B-2506(8) of the North
Carolina General Statutes, the trial court was authorized to placeJuvenile on probation “for a period not to exceed one year[.]”
N.C. Gen. Stat. § 7B-2510(c) (2004). Where the district court
selects a disposition that is authorized by statute, this Court
will not overturn its decision unless it “is so arbitrary that it
could not have been the result of a reasoned decision.” In re
Robinson, 151 N.C. App. at 737, 567 S.E.2d at 229 (citations and
quotation marks omitted).
We find no abuse of discretion. After adjudicating Juvenile
delinquent, the trial court recessed the hearing overnight in order
to consider the record and “make sure that whatever the disposition
on this is appropriate.” Based on the court counselor's report,
which reflected Juvenile's numerous school suspensions and fights,
as well as her prior placement in the Mexican correctional system
when she was thirteen years old, the trial court concluded that six
months of probation would not provide “enough time for her to make
some significant changes in her life.” The trial court expressed
concern that Juvenile “is on the road to being seriously injured or
being through the criminal justice system for the rest of her life
. . . unless something is done at this point.” Its disposition was
neither arbitrarily chosen nor unreasonable.
Affirmed.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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