An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA05-563

NORTH CAROLINA COURT OF APPEALS

Filed: 21 February 2006

IN THE MATTER OF:

D.F.-M.,
        Juvenile.

                        Guilford County
                        No. 04 J 541

    Appeal by juvenile from order entered 11 October 2004 by Judge William K. Hunter in District Court, Guilford County. Heard in the Court of Appeals 23 January 2006.

    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).

*** Converted from WordPerfect ***