Appeal by juvenile from order entered 15 February 2005 by
Judge Regan A. Miller in District Court,
in the Court of Appeals 20 February 2006.
On appeal to this Court, Juvenile contends the trial courterroneously denied his motion to dismiss the armed robbery charge
due to the insufficiency of the evidence. Juvenile's argument is
A juvenile is entitled to have evidence evaluated by the same
standard as those applied in criminal proceedings for adults. In
, 126 N.C. App. 64, 483 S.E.2d 440 (1997). To withstand a
motion to dismiss charges in a juvenile petition, the State must
present substantial evidence of each of the material elements of
the offense alleged. Eller
, 331 N.C. at 717, 417 S.E.2d at 481.
The evidence must be considered in the light most favorable to the
State, and the State is entitled to receive every reasonable
inference of fact that may be drawn from the evidence. Id.
Moreover, juvenile proceedings are non-jury trials wherein:
[t]he trial judge becomes both judge and
juror, and it is his duty to consider and
weigh all the competent evidence before him.
He passes upon the credibility of the
witnesses and the weight to be given their
testimony and the reasonable inferences to be
drawn therefore. If different inferences may
be drawn from the evidence, he determines
which inferences shall be drawn and which
shall be rejected.
Knutton v. Cofield
, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968)
Regarding the charge of robbery with a dangerous weapon, the
State must prove the following elements
: (1) the unlawful taking or an attempt to take
personal property from the person or in the
presence of another (2) by use or threatened
use of a firearm or other dangerous weapon (3)
whereby the life of a person is endangered or
N.C. Gen. Stat. § 14-87 (2005). Force or intimidation occasioned
by the use or threatened use of firearms is the main element of the
offense. State v. Small
, 328 N.C. 175, 181, 400 S.E.2d 413, 416
(1991) (citation omitted).
In this case, Juvenile does not dispute that Mr. Early was
robbed; rather, he contends there was insufficient evidence to show
that he was the perpetrator of the crime. However, the evidence in
the light most favorable to the State shows that Mr. Early
specifically identified Juvenile as the perpetrator of the crime
the morning after the robbery. Mr. Early testified that he saw
Juvenile the morning after the robbery and that Juvenile was
wearing the same clothing that he had worn during the robbery:
blue jeans, tennis shoes, and a black shirt with a white
undershirt. He testified, As soon as I saw him, I had this shiver
all over my body and my hair was standing on the back of my neck,
and I was like, 'That's the guy.'
The trial transcript further shows that Mr. Early did not base
his identification of Juvenile solely on the clothes that he wore
the morning after the robbery. Mr. Early testified that during therobbery, Juvenile wore a bandana across his mouth and a hat turned
to the side,
and that he could see Juvenile's face from the top of
his mouth to the top of his forehead, including Juvenile's eyes,
nose, and part of his ears and hair.
Furthermore, Detective Driggers testified that Juvenile told
him in their 7 August conversation that he often snuck out of his
bedroom window late at night, and that he had done so the night of
the robbery to get some cigarettes.
This testimony is consistent
with Mr. Early's testimony that he and his wife had, on earlier
occasions, seen Juvenile sneak out of his bedroom late at night to
talk on the telephone. Although the phone records for Mr. Early's
cell phone during the early morning hours of 7 August could not be
traced to Juvenile, Detective Driggers testified that Juvenile said
that he had used Mr. Early's cell phone to call three of his
friends. Juvenile corroborated Detective Driggers' testimony on
direct examination, but said that he only admitted to using Mr.
Early's phone because Detective Driggers pressured him to. On
cross-examination, however, Juvenile testified that he used
somebody's cell phone -- that was up at the store on the night
of the robbery.
Regarding the telephone records, the trial judge observed that
Juvenile's home telephone records showed a gap in time between 2:07
a.m. and about 3:00 a.m. This gap in the records is consistentwith Officer Michael Smith's testimony that three robberies
occurred in Juvenile's apartment complex within about less than an
hour of each other, and Mr. Early's testimony that he was robbed
some time between 2:30 and 3:00 a.m.
This evidence shows that, when viewed in the light most
favorable to the State, there was sufficient evidence to support
the trial court's denial of Juvenile's motion to dismiss. Thus,
Juvenile's assignment of error is rejected.
Juvenile next argues the trial court erroneously permitted
Detective Driggers to testify about a conversation he had with one
of Juvenile's acquaintances, implicating Juvenile in an unrelated
robbery. Juvenile contends this hearsay was offered to prove he
committed the armed robbery in this case, and the trial court's
error in admitting this testimony into evidence amounts to
prejudicial error, entitling him to a new hearing.
Hearsay is defined as a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
Stat. § 8C-1, Rule 801(c) (2005)
. Hearsay is not admissible absent
an applicable exception.
N.C. Gen. Stat. § 8C-1, Rule 802 (2005).
However, when a statement is not being offered for the truth of
the matter asserted, the statement is not considered hearsay and,
therefore, is admissible, even absent an applicable exception.State v. Gainey
, 355 N.C. 73, 87, 558 S.E.2d 463, 473, cert.
, 537 U.S. 896, 154 L. Ed. 2d 165 (2002) (citing State v.
, 349 N.C. 382, 409, 508 S.E.2d 496, 513 (1998)).
In this case, Juvenile contends the trial court erroneously
admitted hearsay within hearsay through the testimony of Detective
Driggers. Detective Driggers testified about a conversation he had
with one of Juvenile's acquaintances, B.R., who said that someone
told him that Juvenile and another male had been involved in a
robbery. The relevant portion of the transcript reads:
A: When I -- ask I questioned about [B.R.]
about what was going on and why [Juvenile]
would mention his name as a phone call or
that, he said that he heard that [Juvenile]
and another male named Slim --
MS. SURLES: Well, OBJECTION as to what he
said that he heard.
THE COURT: I don't think this is being
offered -- you're talking about your
investigation right now, is that right?
A: Yes, sir.
THE COURT: Overruled.
A: He said that he had heard that [Juvenile]
and Slim had done a robbery, but he really
couldn't provide me with any information on
this case that was relevant. So that didn't
play out. [Juvenile] also gave me the name of
a fellow . . .
Statements are not hearsay if they are made to explain the
subsequent conduct of the person to whom the statement wasdirected. Id; see also State v. Gainey
, 355 N.C. 73, 58 S.E.2d
463, cert. denied
, 537 U.S. 896, 154 L. Ed. 2d 165 (2002) (hearsay
from anonymous call that car was at lake was admissible to explain
hearer's call to sheriff, sheriff's staking the lake, and hearer
traveling to the lake the next day); State v. Poplin,
56 N.C. App.
304, 289 S.E.2d 124, disc. review denied
, 305 N.C. 763, 292 S.E.2d
579 (1982) (hearsay admissible when offered to show why undercover
agent and declarant left presence of the defendant to retrieve
cocaine from a birdhouse in the defendant's backyard).
The facts in this case, however, are distinguishable from
those cases where courts have held that hearsay may be admissible
if it is used to show or explain subsequent actions.
Detective Driggers did not testify that B.R.'s statement caused him
to do anything, or to change the course of his investigation. In
fact, Detective Driggers admitted that this information from B.R.
did not provide anything relevant to the investigation of
Juvenile's involvement in this robbery. Thus, we hold that the
trial court erred in admitting Detective Driggers' testimony as to
what B.R. said he heard from an unknown third party about Juvenile
committing a robbery.
Notwithstanding, we must further determine
whether the trial court's error rises to the level of prejudicial
To show prejudicial error, a defendant must show there is areasonable possibility that had the error not been committed, a
different result would have been reached at trial.
Stat. § 15A-1443(a) (2005)
(providing that in order to demonstrate
prejudicial error, a defendant must show that there is a reasonable
possibility a different result would have been reached had the
error not occurred); see also State v. Rosier,
322 N.C. 826, 829,
370 S.E.2d 359, 361 (1988).
If such a burden is not met, the error
is deemed harmless and the decision of the trial court will stand.
N.C. Gen. Stat. § 15A-1443(a). With respect to Juvenile's
adjudication, we hold that the erroneous admission of Detective
Driggers' hearsay testimony was not sufficiently prejudicial to
warrant a new hearing. The trial judge, sitting as the judge and
jury in this non-jury hearing, made clear that the only purpose for
Detective Driggers' hearsay testimony was to explain his
investigation, and not to go to the truth of the matter asserted.
Accordingly, we find no prejudicial error, and Defendant's
assignment of error is, therefore, without merit.
(See footnote 2)
Juvenile next argues the trial court erroneously admitted his
statements as evidence without making findings that he knowingly
and willingly waived his rights in violation of N.C. Gen. Stat. §
7B-2101(d) (2005). This argument is without merit.
Section 7B-2101(d) of the North Carolina General Statutes
requires the court to find that the juvenile knowingly, willingly,
and understandingly waived the juvenile's rights before admitting
any statement into evidence resulting from a custodial
interrogation. N.C. Gen. Stat. § 7B-2101(d).
Here, Juvenile contends the trial court erred in admitting
statements into evidence obtained as a result of custodial
interrogation without making appropriate findings that he knowingly
waived his rights. However, a review of the trial transcript
reveals that the only statements admitted into evidence attributed
to Juvenile were statements Juvenile made to Detective Driggers
during their 7 August conversation. During that questioning,Juvenile was in his apartment, and Detective Driggers testified
that prior to speaking with Juvenile about the robbery, he told him
that he was not in custody, and that he did not have to speak with
him. After he said that he understood and agreed to speak with
Detective Driggers, Juvenile then admitted to using Mr. Early's
cell phone on the night of the robbery. Because Juvenile was not
in custody at the time of the 7 August questioning by Detective
Driggers, the trial court was not required to make findings of fact
under section 7B-2101.
Likewise, as it relates to the 18 August 2004 conversation
after Juvenile's arrest, Detective Driggers testified that Juvenile
did not record a statement during that conversation
, as the
conversation produced nothing usable,
and Juvenile pretty much
held to his same story as before.
Detective Driggers testified
that Juvenile again talked about using Mr. Early's cell phone, but
he wouldn't talk about the robbery at all.
Because the trial
court did not admit any evidence resulting from the custodial
interrogation of Juvenile, only evidence resulting from a non-
custodial interrogation of Juvenile, we conclude the trial court
was not required to make specific findings that Juvenile waived his
rights under section 7B-2101(d)
. Juvenile's assignment of error
is, therefore, rejected.
In his final argument on appeal, Juvenile argues the trialcourt erred by not informing him of his privilege against self-
incrimination before he testified on his own behalf. Juvenile's
argument is without merit.
When a trial court accepts an admission from a juvenile,
section 7B-2407 of the North Carolina General Statutes requires the
trial court to personally address the juvenile and inform him that
he has a right to remain silent and that any statement the juvenile
makes may be used against him. N.C. Gen. Stat. § 7B-2407 (2005).
Here, Juvenile made no admission at trial, nor did he incriminate
himself. Juvenile testified repeatedly that he was at home talking
on the telephone at the time of the armed robbery. Juvenile
further denied ever having used Mr. Early's cell phone, and said
that he only told Detective Driggers that he had used Mr. Early's
cell phone because he felt pressured. Because Juvenile did not
make an admission while testifying, and he did not give any
incriminating testimony, we find no error.
Chief Judge MARTIN and Judge STEPHENSON concur.
Report per Rule 30(e).