IN THE MATTER OF:
D.F.-M.,
Juvenile.
Guilford County
No. 04 J 541
Attorney General Roy Cooper, by Assistant Attorney General
Bertha L. Fields, for the State.
Don Willey for juvenile-appellant.
McGEE, Judge.
A juvenile petition was filed 13 July 2004 charging D.F.-M.
(the juvenile) with injury to personal property with the damage
caused being in excess of two hundred dollars. At trial, Edwina
Matthews (Ms. Matthews) testified she owned a "2003 [Hyundai]
Accent[]" vehicle (the vehicle). Ms. Matthews testified that the
juvenile, the juvenile's mother and a few other people came to her
house on 12 June 2004. Ms. Matthews testified the juvenile's
mother accused Ms. Matthews of stealing her money and started an
argument with Ms. Matthews. Ms. Matthews shut the door to her
house and called police. When Ms. Matthews looked out her window,
she saw the juvenile tear off the tag rim on the vehicle, bend thetag, and kick the vehicle. Ms. Matthews further testified there
were scratches and a dent on the hood of the vehicle and on various
other parts of the vehicle. Lisa Smith and Miranda Hampton also
testified they saw the juvenile bend the license tag and "[run]
over the top" of the vehicle.
The juvenile was adjudicated a delinquent juvenile in an order
entered 11 October 2004. The trial court terminated jurisdiction
over the juvenile on 6 December 2004 and did not enter an order of
disposition. The juvenile appeals from the 11 October 2004 order
of adjudication.
Preliminarily, we address whether this Court has jurisdiction
to hear the juvenile's appeal. Pursuant to N.C. Gen. Stat. § 7B-
2602 (2005),
Upon motion of a proper party as defined in
G.S. 7B-2604, review of any final order of the
court in a juvenile matter under this Article
shall be before the Court of Appeals. Notice
of appeal shall be given in open court at the
time of the hearing or in writing within 10
days after entry of the order. However, if no
disposition is made within 60 days after entry
of the order, written notice of appeal may be
given within 70 days after such entry. A
final order shall include:
(1) Any order finding absence of
jurisdiction;
(2) Any order which in effect determines
the action and prevents a judgment
from which appeal might be taken;
(3) Any order of disposition after an
adjudication that a juvenile is
delinquent or undisciplined; or
(4) Any order modifying custodial
rights.
In In re J.L.W., 136 N.C. App. 596, 525 S.E.2d 500 (2000), our
Court construed the predecessor statute to N.C.G.S. § 7B-2602,
holding that "'[a]n adjudication of delinquency is not a final
order. No appeal may be taken from such order unless no
disposition is made within 60 days of the adjudication of
delinquency.'" Id. at 602, 525 S.E.2d at 504 (quoting In re
Taylor, 57 N.C. App. 213, 214, 290 S.E.2d 797, 797 (1982)). In
other words, a juvenile may appeal an adjudication of delinquency
if no disposition is made within sixty days of the adjudication
order as long as the juvenile gives notice of appeal within seventy
days of entry of the adjudication order.
In J.L.W., the juvenile filed notice of appeal from the
adjudication of delinquency ten days after he was adjudicated a
delinquent juvenile and before any disposition had been entered.
In re J.L.W., 136 N.C. App. at 602, 525 S.E.2d at 504.
Accordingly, our Court dismissed the juvenile's appeal as
premature. Id.
The juvenile's appeal in the present case is not premature.
The trial court filed an order adjudicating the juvenile a
delinquent juvenile on 11 October 2004. The trial court then filed
an order to terminate supervision of the juvenile on 6 December
2004, which terminated the trial court's jurisdiction over the
juvenile. The trial court never entered an order of disposition.
The juvenile filed notice of appeal from the adjudication order on
15 December 2004, approximately sixty-five days after entry of the
order of adjudication. Therefore, because no disposition was madewithin sixty days of the adjudication, the juvenile properly gave
notice of appeal from the adjudication order within seventy days of
the entry of that order, pursuant to N.C.G.S. § 7B-2602.
The juvenile first argues the trial court erred by denying his
motion to dismiss the charge of injury to personal property
exceeding two hundred dollars. We agree.
Detective A.B. Barnes with the Greensboro Police Department
filed a juvenile petition on 13 July 2004, alleging that the
juvenile was a "delinquent juvenile as defined by G.S. 7B-1501(7)
in that on or about [12 June 2004] and in [Guilford County], the
juvenile did unlawfully, wantonly and willfully injure personal
property . . . in violation of G.S. 14-160." Specifically, the
petition alleged that the juvenile damaged Ms. Matthews' vehicle by
punching out the passenger window, hitting and kicking the vehicle,
tearing off the tag rim, bending the tag and cutting the tires. At
trial, the State amended the juvenile petition by striking the
allegations that the juvenile punched out the passenger window, hit
the vehicle and cut the tires.
N.C. Gen. Stat. § 14-160 (2005) sets forth two distinct
crimes:
(a) If any person shall wantonly and willfully
injure the personal property of another he
shall be guilty of a Class 2 misdemeanor.
(b) Notwithstanding the provisions of
subsection (a), if any person shall wantonly
and willfully injure the personal property of
another, causing damage in an amount in excess
of two hundred dollars ($200.00), he shall be
guilty of a Class 1 misdemeanor.
The juvenile petition in this case cites N.C.G.S. § 14-160generally, without reference to either subsection (a) or (b).
However, it is clear from the petition that the juvenile was
charged with violating N.C.G.S. § 14-160(b). Within the box on the
petition marked "Category Of Offense," the petitioner marked,
"Misdemeanor, Class 1[.]" Violation of N.C.G.S. § 14-160(a) is a
Class 2 misdemeanor, while violation of N.C.G.S. § 14-160(b) is a
Class 1 misdemeanor. Petitioner's designation of "Misdemeanor,
Class 1[]" therefore indicates that the juvenile was charged under
N.C.G.S. § 14-160(b). Additionally, petitioner marked the box on
the petition which is labeled "(Check if appropriate) The damage
caused was in excess of $200." Petitioner's indication that the
juvenile allegedly caused in excess of two hundred dollars in
damage also establishes that the juvenile was charged with
violating N.C.G.S. § 14-160(b).
The juvenile argues, and the State concedes, that the State
offered no evidence "as to the dollar amount of the damage to the
. . . [vehicle]." "[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).
Because the State failed to offer any evidence of the value of the
damage allegedly caused by the juvenile to the vehicle, the State
failed to meet its burden of proof and the trial court erred by
denying the juvenile's motion to dismiss.
However, we find the evidence that the juvenile kicked the
vehicle, tore the tag rim, bent the tag and "ran over the top" ofthe vehicle, causing dents and scratches, was sufficient to support
a verdict of guilty of the lesser included offense of injury to
personal property pursuant to N.C.G.S. § 14-160(a). Accordingly,
the juvenile's conviction for injury to personal property exceeding
two hundred dollars was error, and we remand for entry of an order
of adjudication on the lesser included offense of injury to
personal property, under N.C.G.S. § 14-160(a). See, In re
Mitchell, 87 N.C. App. 164, 359 S.E.2d 809 (1987).
Remanded.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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