In Re: K.E., (05-196) 01/17/2006

Appeal by defendant from adjudication and disposition orders entered 1 September 2004 by Judge John W. Smith in New Hanover County District Court. Heard in the Court of Appeals 27 December 2005.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Jane T. Hautin, for the State.

Lisa Skinner Lefler, for defendant-appellant.

JACKSON, Judge.

    K.E. (“the juvenile”) appeals from an order adjudicating him delinquent and a dispositional order placing him on probation and ordering him to make restitution.
    On appeal, the juvenile makes the following assignments of error:
        1.    The trial court committed reversible error by adjudicating the juvenile delinquent where the testimony of the state's witness was that she was “not actually sure” that she saw the juvenile throw the rock at her car.

        2.    The trial court committed reversible error by adjudicating the juvenile delinquent where the testimony of the state's witness was that she “never sawhim [the juvenile] throw rocks at [her] jeep.

3. The trial court committed reversible error by adjudicating the juvenile delinquent because, in the words of the trial court, [“][the juvenile] was probably throwing rocks at people and hit the car” as the standard of proof was incorrect as used by the trial court.

None of these assignments of error state the legal basis for the alleged error. “Each assignment of error . . . shall state plainly, concisely and without argumentation the legal basis upon which error is assigned.” N.C. R. App. P. Rule 10(c)(1)(2005). “[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10.” N.C. R. App. P. Rule 10(a)(2005). In his brief, the juvenile argues that the trial court erred by failing to grant his motion to dismiss at the close of the State's evidence. The assignments of error set forth in the record on appeal do not contain this legal argument, however, and therefore it is not properly before us.
    Accordingly, this assignment of error is dismissed.
    Even assuming arguendo that the propriety of the trial court's denial of his motion to dismiss was properly before us, the juvenile could not prevail. At trial, the juvenile's counsel made a motion to dismiss the charge for insufficient evidence at the close of the State's evidence. The trial court denied that motion. The juvenile then presented evidence by testifying in his own defense. No motion to dismiss for insufficient evidence was madeat the close of all evidence.
    Rule 10(b)(3) of the North Carolina Rules of Appellate Procedure provides:

If a defendant makes [a motion to dismiss] after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived. Such waiver precludes the defendant from urging the denial of such motion as a ground for appeal.

. . .

[I]f a defendant fails to move to dismiss the action or for judgment as in case of nonsuit at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged.

As the juvenile failed to make a motion to dismiss after the close of all evidence, he cannot argue on appeal that the evidence was insufficient to prove his guilt.
    In his brief, the juvenile also argues that the trial court lacked subject matter jurisdiction over the action as the juvenile petition was not filed within the statutorily prescribed time. This issue was not raised before the trial court, nor was it included in an assignment of error in the record. Generally, issues not raised before, and ruled upon by, the trial court or included in the assignments of error in the record may not be considered on appeal. N.C. R. App. P. Rule 10(b)(1) and (a). However, questions regarding whether the trial court had subject matter jurisdiction over the case may be raised by arguing the issue in the brief, even if it was not raised before the trialcourt nor included in the assignments of error in the record. State v. Beaver, 291 N.C. 137, 139-40, 229 S.E.2d 179, 181 (1976). This issue is, therefore, properly before us for review.
    A juvenile complaint must be evaluated, and a determination of whether it will be filed as a juvenile petition must be made, within fifteen days of receipt of the complaint. N.C. Gen. Stat. . 7B-1703(a) (2003). North Carolina General Statutes, section 7B- 1703(a) further provides for an additional fifteen day extension at the discretion of the chief court counselor. If the complaint is approved for filing as a petition, the petition must be filed as soon as practicable but not later than fifteen days after receipt of the complaint, unless a fifteen day extension is granted at the discretion of the chief court counselor. N.C. Gen. Stat. . 7B- 1703(b) (2003).
    The juvenile argues that the alleged offense occurred on 11 March 2004 and that, because the police were called to investigate the incident, the court counselor “would have been informed of the complaint immediately thereafter” and accordingly the approval of the filing of the petition on 29 April 2004 was outside the statutory maximum time of thirty days. In the record, however, the only indication of when notice was given to the court counselor is the sworn and subscribed petition signed by Officer Betts of the Wilmington Police Department dated 13 April 2004. The court counselor approved the petition for filing on 29 April 2004, sixteen days after Officer Betts verified the allegations in the petition. The petition was filed on 3 May 2004. The approval andfiling of the petition both were completed within the maximum statutorily prescribed time limits, including the discretionary fifteen day extension.
    Accordingly, this assignment of error is overruled.
    Affirmed.