Appeal by juvenile from orders entered 2 September 2004 and 20
September 2004 by Judge Bradley R. Allen, Sr. in District Court,
Alamance County. Heard in the Court of Appeals 23 January 2006.
Attorney General Roy Cooper, by Assistant Attorney General
June S. Ferrell, for the State.
Anne Bleyman for juvenile-appellant.
J.L.B.M., a juvenile, appeals from orders adjudicating him
delinquent, committing him to the Department of Juvenile Justice
and Delinquency Prevention for an indefinite period of time, and
denying his release from custody pending appeal. For the reasons
set forth below, we (1) affirm the adjudication order in part,
reverse in part, and remand in part for further findings; and (2)
we vacate and remand the commitment order and the order denying
release of the juvenile.
Juvenile petitions were filed on 14 July 2004 alleging that
J.L.B.M. (the juvenile) was delinquent in that he committed the
following acts: (1) set fire to, burned, or caused to be burned a
government building in violation of N.C. Gen. Stat. § 14-59; (2)
damaged real property in violation of N.C. Gen. Stat. § 14-127; (3)
resisted, delayed, and obstructed an officer in violation of N.C.
Gen. Stat. § 14-223; and (4) carried a concealed weapon inviolation of N.C. Gen. Stat. § 14-269(a1).
Evidence at the hearing tended to show the following: While on
patrol at approximately 6:00 p.m. on 6 July 2004, Officer D.H.
Henderson (Officer Henderson) responded to a police dispatch of a
"suspicious person" at an Exxon gas station in Burlington, North
Carolina. The only description given of the person was "Hispanic
male." Officer Henderson saw a person in the gas station parking
lot, later identified as the juvenile, who fit the description of
the person. When the juvenile saw Officer Henderson, he walked
over to a vehicle in the parking lot, spoke to someone, and then
began walking away from Officer Henderson's patrol car. Officer
Henderson pulled up beside the juvenile in an adjoining restaurant
parking lot and stopped the juvenile. Upon getting out of the
patrol car and speaking with the juvenile, Officer Henderson
noticed a bulge in the juvenile's pocket. Officer Henderson patted
down the juvenile for weapons. Officer Henderson found and seized
a dark blue, half-empty spray can of paint and a box cutter with an
open blade. In response to being asked his name, the juvenile
replied, "Oscar Lopez."
Officer Henderson transported the juvenile to a nearby
shopping center where graffiti had recently been sprayed. Officer
Henderson testified that the graffiti, which was blue, read: "Sir
13, Mr. Puppet 213." Officer Henderson testified that the juvenile
initially said that "Mr. Puppet" had done the graffiti, and that
the juvenile later identified himself as "Mr. Puppet."
Officer Henderson drove the juvenile to the police station,again patted him down, and found fireworks in the juvenile's
pocket. Officer Henderson let the juvenile keep the fireworks.
The juvenile was placed in an interview room, where several
officers questioned him about his name. The juvenile continued to
give the name "Oscar Lopez." Officer Wendy P. Jordan (Officer
Jordan) recognized the juvenile's face and called him by his real
name, "J----." The juvenile replied, "[M]y name is J---- L--
mother f----- M-----. You found me out."
The juvenile was eventually left alone in the interview room
with the door ajar. Officer R.V. Marsh (Officer Marsh) testified
that he noticed the room "got real quiet," and he looked into the
room. Officer Marsh saw the juvenile trying to light something
with a lighter, then saw a two to three-foot flame come out of the
floor and up the wall. Officer Jordan testified that she saw
sparks flying. The fireworks left black soot on the floor and
The juvenile presented no evidence. At the close of the
hearing, the juvenile made a motion to dismiss, which was denied by
the trial court. The trial court adjudicated the juvenile
delinquent and entered a disposition committing the juvenile to a
period of indefinite commitment. The juvenile appeals.
The juvenile argues more than a dozen assignments of error on
appeal, which we will discuss as four issues: whether the trial
court erred by (I) denying the juvenile's motion to suppress
evidence obtained during a search of the juvenile; (II) denying thejuvenile's motion to dismiss each allegation; (III) failing to
include a maximum term of commitment in the written order of
commitment; and (IV) failing to state in writing the compelling
reasons for denying the juvenile's release pending appeal.
We note that at the same time as the trial court entered its
disposition order on the four offenses discussed herein, it revoked
the juvenile's probation for three prior offenses. Arguably, the
juvenile assigned error to this order, but failed to argue it in
his brief. As such, it is deemed abandoned. N.C.R. App. P.
 The juvenile first argues the trial court erred in denying
his motion to suppress evidence obtained after the juvenile was
stopped and searched by Officer Henderson. The juvenile contends
there were insufficient grounds for stopping the juvenile, and
therefore any evidence obtained as a result of the stop was
inadmissible and should have been suppressed.
A trial court's findings of fact made after a suppression
hearing are binding on the appellate courts if supported by
competent evidence. State v. Brooks
, 337 N.C. 132, 140, 446 S.E.2d
579, 585 (1994). A trial court's conclusions of law are reviewed
on appeal. State v. Kincaid
, 147 N.C. App. 94, 97, 555
S.E.2d 294, 297 (2001).
In the present case, the trial court made the following
relevant findings of fact:
that on or about July 6, 2004 . . . Officer
Henderson, a 27 year veteran of the BurlingtonPolice Dept. had received a call of a
suspicious activity at Coy's Exxon on the
corner of Graham-Hopedale Rd. and N. Church
St. That location has had numerous calls for
shoplifting[,] fights[,] and other activity.
Also there is numerous gang and graffiti
activity at that end of town. The call was
for a suspicious person being a Hispanic male.
The officer went specifically to that location
and the juvenile matches the description of
being a Hispanic male[,] and[,] according to
the officer's testimony, he was wearing gang
attire, large baggy clothes.
We uphold the trial court's findings, with the exception of the
finding that the dispatch call was about "suspicious activity,"
because Officer Henderson testified that the dispatch was about a
"suspicious person" at the Exxon gas station. Officer Henderson
testified as follows:
A [T]he [dispatch] call was a suspicious person
at the [Exxon] station at the corner of
Graham-Hopedale and Church Street.
. . . .
Q What time of the day or night was that?
A It was right before 6 o'clock p.m.
. . . .
A . . . I saw a person fitting [the]
description in the parking lot at Coy's.
When he saw me, he walked over to a
vehicle in the parking lot, spoke to
somebody and immediately began walking
away. As I approached, [I] stopped him
in the parking lot next door of Kentucky
Q Do you recall the description that you
were given of that suspicious person?
A No, I do not, other than Hispanic male.
Officer Henderson continued his testimony during a voir dire:
Q Officer, at the time you got the call
about suspicious activity [sic], was any
criminal activity alleged?
A Not from what our dispatcher gave us, no.
Q Okay. And did you, up to the point where
you stopped [the juvenile], did you ever
see him committing any illegal act?
A No, sir.
Q Okay. And you, he was walking away from
you, and you asked him to stop and patted
A He looked in my direction and then turned
and walked away. Yes, sir.
. . . .
Q And nothing [criminal] in particular with
[regard to] [the juvenile] that you know
A Other than he was wearing gang attire.
Q What kind of attire was that?
A Large baggy clothes.
Q Is that it?
A I guess that's it.
The trial court further found there was a "reasonable,
[articulable] suspicion that some criminal activity may have taken
place" and distinguished the present case from State v. Fleming
106 N.C. App. 165, 415 S.E.2d 782 (1992). Although labeled as
findings, these determinations are actually conclusions of law, in
that they require the exercise of judgment and application of legal
principles. See In re Helms
, 127 N.C. App. 505, 510, 491 S.E.2d
672, 675 (1997). As such, they are reviewable de novo
, 147 N.C. App at 97, 555 S.E.2d at 297. The Fourth Amendment protects the right of individuals to be
free from "unreasonable searches and seizures." U.S. Const. amend.
IV. This protection is applicable to the states through the Due
Process Clause of the Fourteenth Amendment. Mapp v. Ohio
, 367 U.S.
643, 655, 6 L. Ed. 2d 1081, 1090 (1961). The right to be free from
unreasonable searches and seizures applies to seizures of the
person, including brief investigatory stops. Terry v. Ohio
U.S. 1, 16-19, 20 L. Ed. 2d 889, 903-905 (1968). "An investigatory
stop must be justified by 'a reasonable suspicion, based on
objective facts, that the individual is involved in criminal
activity.'" State v. Watkins
, 337 N.C. 437, 441, 446 S.E.2d 67, 70
(1994) (quoting Brown v. Texas
, 443 U.S. 47, 51, 61 L. Ed. 2d 357,
362 (1979)). Whether an officer had a reasonable suspicion to make
an investigatory stop is evaluated under the totality of the
. (citing U.S. v. Cortez
, 449 U.S. 411, 417, 66
L. Ed. 2d 621, 629 (1981)).
The stop must be based on specific and
articulable facts, as well as the rational
inferences from those facts, as viewed through
the eyes of a reasonable, cautious officer,
guided by [the officer's] experience and
training. The only requirement is a minimal
level of objective justification, something
more than an "unparticularized suspicion or
., 337 N.C. at 441-42, 446 S.E.2d at 70 (quoting U.S. v. Sokolow
490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)) (other citations
The juvenile argues that the facts of this case are analogous
to those in Fleming
. In Fleming
, our Court held that a stop andfrisk was unjustified where an officer relied solely on the fact
that a defendant was standing in an open area between two apartment
buildings shortly after midnight and chose to walk away from a
group of officers. Fleming
, 106 N.C. App. at 171, 415 S.E.2d at
785. From those facts, our Court held that the officer in Fleming
had only a "generalized suspicion that the defendant was engaged in
criminal activity, based upon the time, place, and the officer's
knowledge that defendant was unfamiliar in the area." Id
defendant's actions "were not sufficient to create a reasonable
suspicion that [the] defendant was involved in criminal conduct, it
being neither unusual nor suspicious that [the defendant] chose to
walk in a direction which led away from [a] group of officers."
, 106 N.C. App. at 170-71, 415 S.E.2d at 785.
In the present case, the dispatch did not allege that the
"suspicious person" was engaged in any criminal activity. Cf
, 122 N.C. App. 290, 292, 468 S.E.2d 610, 612, disc
, 344 N.C. 437, 476 S.E.2d 132 (1996) (holding that
articulable facts sufficient to support a stop included a telephone
call that two black males were selling drugs at a particular
location, discovery of the juvenile at that location with another
black male, and the juvenile's nervous body reflexes); State v.
, 112 N.C. App. 777, 779, 437 S.E.2d 387, 388 (1993) (holding
that an officer responding to a call that individuals were dealing
drugs had more than a generalized suspicion); State v. Cornelius
104 N.C. App. 583, 585-588, 410 S.E.2d 504, 506-508 (1991), disc
, 331 N.C. 119, 414 S.E.2d 762 (1992) (holding that anofficer had reasonable suspicion to justify an investigatory stop
of an automobile where the officer received a dispatch that a black
male in a black BMW with a temporary license tag was selling
controlled substances, and the officer observed a person in an
automobile fitting that description less than one minute later).
Rather, the dispatch specified only that there was a suspicious
person described as a Hispanic male. There was no approximate age,
height, weight or other physical characteristics given as part of
the description, nor was there a description of any specific
clothing worn by the suspicious person. Cf
. State v. Lovin
N.C. 695, 703-04, 454 S.E.2d 229, 234 (1995) (holding circumstances
supporting reasonable suspicion included a description of a
suspicious person with "a 'lot of hair,' a gold watch and large
frame glasses"); State v. Jordan
, 120 N.C. App. 364, 367-68, 462
S.E.2d 234, 237, disc
, 342 N.C. 416, 465 S.E.2d 546
(1995) (holding specific articulable facts sufficient to justify a
stop included a description of the defendants' clothing).
Officer Henderson did not observe the juvenile
committing any criminal acts, nor had there been other reports of
any criminal activity in the area that day. Cf
. State v. Thompson
296 N.C. 703, 707, 252 S.E.2d 776, 779, cert
, 444 U.S. 907,
62 L. Ed. 2d 143 (1979) (holding circumstances supporting
reasonable suspicion for an investigatory stop of occupants of a
van included that the van was located near the vicinity where
officers had reports earlier that evening of break-ins involving a
van). Although the trial court found that police had receivedcalls for shoplifting, fights, "and other activity" from the gas
station, and that "that end of town" had gang and graffiti
activity, the State offered no evidence of whether any past calls
of shoplifting, fights, or other activity had led to any actual
. State v. Butler
, 331 N.C. 227, 233, 415 S.E.2d 719,
722 (1992) (holding circumstances supporting reasonable suspicion
to make a stop included that the defendant was on a corner on which
recent, multiple drug-related arrests had been made). Moreover,
the juvenile was stopped at approximately 6:00 p.m. on a summer
evening in front of an open business. Cf
. State v. Rinck
, 303 N.C.
551, 555-560, 280 S.E.2d 912, 916-20 (1981) (holding circumstances
supporting a reasonable basis for a stop included that the
defendants were walking along a road at an "unusual hour" of
approximately 1:35 a.m.); State v. Blackstock
, 165 N.C. App. 50,
59, 598 S.E.2d 412, 418 (2004), disc. review denied
, 359 N.C. 283,
610 S.E.2d 208 (2005) (holding reasonable and articulable suspicion
existed to support an investigatory stop of a vehicle where the
defendant and driver were observed loitering at a closed shopping
center shortly before midnight, no other vehicles were in the
parking lot, and the two men abruptly and hurriedly returned to
their vehicle, which was parked out of general public view)
The State argues "[i]t is clear from the record that Officer
Henderson had a reasonable suspicion that the juvenile was involved
in suspicious activity." However, the rule is clear under both
federal and state law that an officer must have a reasonable and
articulable suspicion of "criminal activity," not merely suspiciousactivity. See Brown v. Texas
, 443 U.S. 47, 51, 61 L. Ed. 2d 357,
362 (1979); Watkins
, 337 N.C. at 441, 446 S.E.2d at 70. Even
viewed through the eyes of a reasonable, cautious officer, see id.
the facts relied on by Officer Henderson are inadequate to show
more than an unparticularized suspicion or hunch that the juvenile
was involved in criminal activity.
We hold that in the present case, like in Fleming
, the stop
was unjustified. Officer Henderson relied solely on the dispatch
that there was a suspicious person at the Exxon gas station, that
the juvenile matched the "Hispanic male" description of the
suspicious person, that the juvenile was wearing baggy clothes, and
that the juvenile chose to walk away from the patrol car. Officer
Henderson was not aware of any graffiti or property damage before
he stopped the juvenile, and he testified that he noticed the bulge
in the juvenile's pocket after he stopped the juvenile.
From those facts, we find that Officer Henderson had only a
"generalized suspicion that the [juvenile] was engaged in criminal
, 106 N.C. App. at 171, 415 S.E.2d at 785.
Even viewed as a whole picture, the facts and circumstances were
inadequate to create a reasonable suspicion that the juvenile was
involved in criminal activity. The stop was therefore an
unreasonable intrusion upon the juvenile's Fourth Amendment right
to privacy. The trial court erred in denying the juvenile's motion
to suppress evidence obtained thereby. See Mapp
, 367 U.S. 655, 6
L. Ed. 2d 1090.
 The juvenile's second assignment of error is that the
trial court erred in denying the juvenile's motion to dismiss the
underlying allegations. At trial, the juvenile argued there was
insufficient evidence of each allegation.
In reviewing a motion to dismiss a juvenile petition, the
evidence must be considered in the light most favorable to the
State, which is entitled to every reasonable inference that may be
drawn from the evidence. In re Brown
, 150 N.C. App. 127, 129, 562
S.E.2d 583, 585 (2002). "[I]n order to withstand a motion to
dismiss the charges contained in a juvenile petition, there must be
substantial evidence of each of the material elements of the
offense charged." In re Bass
, 77 N.C. App. 110, 115, 334 S.E.2d
779, 782 (1985). If the evidence raises merely "'suspicion or
conjecture as to either the commission of the offense or the
identity of the [juvenile] as the perpetrator of it, the motion
should [have been] allowed.'" In re Heil
, 145 N.C. App. 24, 28,
550 S.E.2d 815, 819 (2001) (quoting State v. Powell
, 299 N.C. 95,
98, 261 S.E.2d 114, 117 (1980)).
The juvenile argues the State presented insufficient evidence
of the allegation of carrying a concealed weapon because the
State's sole evidence was the fruit of an illegal stop. We agree.
We have held that the stop of the juvenile was unreasonable and
that evidence obtained as a result of the illegal stop should have
been suppressed by the trial court.
Such evidence includes the box
cutter found by Officer Henderson in the juvenile's pants pocket.
Other than the illegally obtained box cutter, and OfficerHenderson's testimony about its seizure, the State presented no
evidence to support the allegation of carrying a concealed weapon.
Accordingly, the trial court erred in denying the juvenile's motion
to dismiss this allegation, as there was insufficient admissible
evidence that the juvenile was carrying a concealed weapon.
 The juvenile also challenges the sufficiency of the
State's evidence of the allegation of injury to real property.
This argument has some merit. At trial, the State presented
evidence of a spray can of paint obtained by Officer Henderson
during his stop of the juvenile. We have held that Officer
Henderson's stop of the juvenile was unreasonable. Therefore, the
spray can of paint should have been suppressed by the trial court,
and cannot be used to support this allegation.
Along with the spray can of paint, the State introduced
evidence of the juvenile's statement that "Mr. Puppet" had sprayed
the graffiti, and evidence of the juvenile's confession that he was
in fact "Mr. Puppet." Officer Henderson testified that at the
scene of the graffiti, he "had a conversation with" the juvenile,
and the juvenile stated that "Mr. Puppet" had sprayed the graffiti.
Officer Henderson also testified that after being transported to
the police department, the juvenile admitted to being "Mr. Puppet."
The juvenile argues this testimony was introduced in violation of
"In Miranda v. Arizona
, the United States Supreme Court held
that a suspect must be informed of his rights upon being arrested:
that is, to remain silent, to an attorney and that any statementmade may be used as evidence against him." State v. Miller
N.C. 658, 666, 477 S.E.2d 915, 920 (1996) (citing Miranda v.
, 384 U.S. 436, 16 L. Ed. 2d 694 (1966)) (internal citation
omitted). In addition to these constitutional rights, our General
Assembly has granted to juveniles certain statutory protections,
including the right to have a parent, guardian or custodian present
N.C. Gen. Stat. § 7B-2101 (2005) provides in
(a) Any juvenile in custody must be advised
prior to questioning:
(1) That the juvenile has a right to
(2) That any statement the juvenile does
make can be and may be used
against the juvenile;
(3) That the juvenile has a right to have
a parent, guardian, or
custodian present during
(4) That the juvenile has a right to
consult with an attorney. . . .
(b) When the juvenile is less than 14 years of
age, no in-custody admission or confession
resulting from interrogation may be admitted
into evidence unless the confession or
admission was made in the presence of the
juvenile's parent, guardian, custodian, or
attorney. . . .
It is undisputed that the juvenile was thirteen years old at
the time of the questioning, and that no parent, guardian,
custodian or attorney was present during the time the juvenile made
any statements. Therefore, if the juvenile's admissions were
obtained during a custodial interrogation, they would be
inadmissible. See In Re Butts
, 157 N.C. App. 609, 612, 582 S.E.2d
279, 282 (2003). The determination of whether a juvenile is in custody is
whether, "based upon the trial court's findings of fact, a
reasonable person in [the juvenile's] position would have believed
that he was under arrest or was restrained in his movement to that
significant degree." State v. Garcia
, 358 N.C. 382, 396, 597
S.E.2d 724, 737 (2004), cert
, ___ U.S. ___, 161 L. Ed. 2d
122 (2005) (citing State v. Buchanan
, 353 N.C. 332, 339-40, 543
S.E.2d 823, 828 (2001)).
However, the trial court made no findings
or conclusions as to whether the juvenile's statements about "Mr.
Puppet" were made during a custodial interrogation. The order
stated only that "[t]he juvenile was questioned about [the
graffiti] and he stated that somebody else did it[,] a Mr. Puppet"
and that "[l]ater at the police dept. [the juvenile] admitted that
he was Mr. Puppet." Moreover, there is insufficient evidence in
the record on this issue, with no testimony as to whether the
juvenile was in custody or being interrogated when he allegedly
stated that "Mr. Puppet" had painted the graffiti. There is no
testimony as to when exactly the juvenile admitted to being "Mr.
Puppet," or under what circumstances he made such an admission.
The only evidence of the juvenile's admission is the testimony of
Officer Henderson that during a "conversation" about the graffiti,
the juvenile told him "Mr. Puppet" had done it, and "[l]ater at the
police department, [the juvenile] identified himself as Mr.
Puppet." Accordingly, we cannot discern whether the juvenile's
admissions were made in response to custodial interrogation in
violation of the juvenile's
constitutional and statutory rights. We therefore remand for findings on whether the juvenile was in
custody at the time of his questioning, and whether his statements
were the result of interrogation. See Buchanan
, 353 N.C. 332, 543
S.E.2d 823 (remanding for a determination of whether the defendant
was in custody for purposes of Miranda
); State v. Johnson
, 310 N.C.
581, 313 S.E.2d 580 (1984) (remanding for findings where "voir dire
evidence and the trial judge's findings [were] insufficient to
permit adequate review by the appellate courts" of legality of
search); In re Young
, 78 N.C. App. 440, 337 S.E.2d 185 (1985)
(remanding for findings on compliance with prior version of N.C.
Gen. Stat. § 7B-2101).
If the trial court determines the juvenile's statements were
inadmissible, then the trial court's denial of the motion to
dismiss this allegation will have been error.
Without the spray
can of paint, or the juvenile's confession, the State's evidence
was insufficient to support an adjudication of delinquency on the
underlying allegation of injury to real property.
The juvenile also argues the trial court erred in denying
his motion to dismiss the allegation of resisting an officer in
violation of N.C. Gen. Stat. § 14-223. The elements of resisting
an officer are that a person (1) willfully and unlawfully; (2)
resists, delays or obstructs; (3) a public officer; (4) who is
discharging or attempting to discharge a duty of office. N.C. Gen.
Stat. § 14-223 (2005). In the present case, the petition alleged
that the juvenile resisted, delayed, and obstructed Officer
Henderson by giving a false name at the time Officer Henderson wasconducting an investigation. The trial court found that by
insisting his name was "Oscar Lopez," the juvenile delayed Officer
Henderson's investigation of the offenses of injury to real
property and carrying a concealed weapon.
The juvenile argues that since Officer Henderson's stop was
invalid, the juvenile was within his right to give a false name.
We disagree and hold that the invalid stop did not give the
juvenile license to subsequently lie about his identity to Officer
Henderson. See, e.g., State v. Miller
, 282 N.C. 633, 641, 194
S.E.2d 353, 358 (1973) (holding that a defendant was not excused
for his subsequent criminal behavior even though police entered the
premises on an invalid search warrant). The juvenile argues the
well-established rule that a person has the right to resist an
illegal arrest. See
, State v. McGowan
, 243 N.C. 431, 90
S.E.2d 703 (1956); State v. Hewson
, 88 N.C. App. 128, 362 S.E.2d
574 (1987). However, the facts of the present case are
distinguishable from the line of cases dealing with illegal arrest.
, for example, this Court held that a motion to dismiss a
charge of resisting arrest should have been granted where the
underlying arrest was illegal, because a lawful arrest was a
necessary element of the charge. Hewson
, 88 N.C. App. at 132, 362
S.E.2d at 576-77. In this case, the State presented substantial
evidence of each element of the allegation of resisting, delaying,
or obstructing an investigation. In giving Officer Henderson a
false name, the juvenile delayed the officer's investigation,
including any attempt to contact the juvenile's parent or guardian.
Accordingly, we affirm the trial court's denial of the juvenile's
motion to dismiss this allegation.
 By his next assignment of error, the juvenile argues the
trial court erred in denying his motion to dismiss the allegation
of burning a public building. Under the facts of this case, in
order to survive the juvenile's motion to dismiss, the State must
have presented substantial evidence of each of the following
elements: (1) the juvenile wantonly and willfully; (2) set fire to
the police station; and (3) the building was owned or occupied by
an incorporated city or town. N.C. Gen. Stat. § 14-59 (2005).
The juvenile first challenges the sufficiency of the State's
evidence on the "wanton and willful" element of the offense. To be
wanton and willful, "it must be shown that [an] act was done
intentionally, without legal excuse or justification, and with
knowledge of or reasonable grounds to believe that the act would
endanger the rights or safety of others." State v. Payne
, 149 N.C.
App. 421, 424, 561 S.E.2d 507, 509 (2002). In the present case,
the State did not introduce any direct evidence that the juvenile
set off fireworks with knowledge of or reasonable grounds to
believe that the act would endanger the rights or safety of others.
However, it is well-established that "[i]ntent is a mental attitude
seldom provable by direct evidence. It must ordinarily be proved
by circumstances from which it may be inferred." State v. Bell
285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974). Officer Marsh
testified that the juvenile laughed when Officer Marsh attempted to
put out the fireworks. Viewed in the light most favorable to theState, this evidence is sufficient to give rise to an inference
that the juvenile's act was wanton and willful.
element of N.C.G.S. § 14-59 is supported by the evidence.
The juvenile also challenges the sufficiency of the State's
evidence on the "setting fire" element of the offense. N.C.G.S. §
14-59 refers to four acts which constitute the operative element of
the offense: (1) set fire to; (2) burn; (3) cause to be burned; or
(4) aid, counsel or procure the burning of the building.
court found that the juvenile's act of setting off fireworks
ignited a flame approximately two to three feet high, which caused
"black markings on the floor and white markings on the wall" of the
interview room. The trial court found that "this is not burning"
but noted that "burning is not required to meet the elements [of
N.C.G.S. § 14-59] but setting fire does meet the elements."
Therefore, in order to find the juvenile in violation of N.C.G.S.
§ 14-59, we must uphold
the trial court's conclusion that the
juvenile's act of igniting fireworks constituted "setting fire" to
the police department building.
We note that N.C.G.S. § 14-59 does not define the act of
setting fire. See
N.C.G.S. § 14-59. Nor has North Carolina case
law interpreted what act is necessary to constitute setting fire to
a government building under this statute. However, in State v.
Hall, 93 N.C. 571 (1885), our Supreme Court held that "set fire to"
is distinct and different from "burn."
The Court reasoned that "it
is certainly possible to set fire to some articles which, by reason
of the sudden extinction of the fire, may fail to change bycharring even the material to which it has been applied, so that
the defendant may have done the act imputed and yet not burned
within the meaning of the act [of 1875.]" Hall
, 93 N.C. at 574.
Moreover, in State v. Avery
, 315 N.C. 1, 337 S.E.2d 786
(1985), our Supreme Court held that where a defendant ignited a
fire bomb in a building, which caused blackening of the tile floor,
a steel cabinet, and an office partition, the act of igniting the
fire bomb was sufficient to support a conviction for the lesser
included offense of attempting to set fire to or burn a building
under N.C. Gen. Stat. § 14-67.1. The State was not required to
prove a "burning" in order to prove an attempt to burn or set fire.
, 315 N.C. at 25, 337 S.E.2d at 799. We note that, unlike the
facts of Avery
, the juvenile in the present case did not set off a
fire bomb, but rather set off fireworks. While this factual
distinction may be significant under different facts, the facts
here are that the juvenile set off fireworks "near the wall" of the
interview room. Given the proximity of the fireworks to the wall
and the resulting flame and damage, we infer an intent to set fire
with the fireworks. See State v. Grigsby
, 351 N.C. 454, 457, 526
S.E.2d 460, 462 (2000) (holding that an individual is presumed to
intend the natural consequences of the individual's actions).
Accordingly, the trial court did not err in denying the juvenile's
motion to dismiss this allegation.
 The juvenile next argues the trial court erred in omitting
from the commitment order the maximum term of commitment, inviolation of N.C. Gen. Stat. § 7B-2513(a), which requires a trial
court to determine the maximum period of time for which a juvenile
may remain committed and to notify the juvenile of that
determination. The State concedes the error. While the trial
court made the proper finding orally that commitment would not
exceed the juvenile's eighteenth birthday, this term was omitted
from the written order. Once the record on appeal has been filed
with an appellate court, the trial court is divested of
jurisdiction to correct a clerical error. See State v. Dixon
N.C. App. 332, 337, 533 S.E.2d 297, 301 (2000). Accordingly, we
remand to the trial court with instructions to correct the clerical
error on the commitment order.
 The juvenile's final argument is that the trial court
erred in not stating its compelling reasons for denying the release
of the juvenile pending appeal, in violation of N.C. Gen. Stat. §
7B-2605. N.C. Gen. Stat. § 7B-2605 (2005) provides:
Pending disposition of an appeal, the release
of the juvenile, with or without conditions,
should issue in every case unless the court
orders otherwise. For compelling reasons
which must be stated in writing, the court may
enter a temporary order affecting the custody
or placement of the juvenile as the court
finds to be in the best interests of the
juvenile or the State.
The State concedes the error. Accordingly, we vacate the order
denying the juvenile's release pending appeal and remand the matter
to the trial court for findings as to the compelling reasons for
denying release. As we noted in In re Lineberry
, "we are aware ofthe likelihood that the passage of time may have rendered the issue
of [the] juvenile's custody pending appeal moot." 154 N.C. App.
246, 256, 572 S.E.2d 229, 236 (2002), cert
, 356 N.C. 672,
577 S.E.2d 624 (2003). Moreover, we note that this error by the
trial court has no effect on the juvenile's adjudication or
disposition. See id
. (citing In re Bullabough
, 89 N.C. App. 171,
184, 365 S.E.2d 642, 649 (1988)).
The 20 September 2004 order adjudicating the juvenile
delinquent is hereby
Affirmed in part, reversed in part, and remanded in part.
The 2 September 2004 order committing the juvenile for an
indefinite period of time is hereby
Vacated and remanded.
The 20 September 2004 order denying release of the juvenile
pending appeal is hereby
Vacated and remanded.
Chief Judge MARTIN and Judge STEELMAN concur.
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