An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
IN THE MATTER OF Forsyth County
C.M.H. No. 05 J 125
Appeal by Juvenile from order entered 18 August 2005 by Judge
Laurie Hutchins in District Court, Forsyth County. Heard in the
Court of Appeals 22 August 2006.
Attorney General Roy Cooper, by Assistant District Attorney
Lizmar Bosques, for the State.
Moshera M. Mills for juvenile-appellant.
We dismiss Juvenile's initial issue challenging the trial
court's finding that he was competent to stand trial because the
Juvenile did not include in the record on appeal either a
transcript of the adjudicatory hearing on that matter or a copy of
the written report of the forensic evaluation of his competency to
stand trial. Likewise, concerning Juvenile's other issue on appeal
contending the trial court abused its discretion by ordering him to
pay five hundred dollars ($500) in restitution, we affirm because
the record fails to show prejudicial error.
The facts pertinent to this appeal indicate that on 30 March
2005, a petition was filed against C.M.H., a juvenile, alleging
that he assaulted an exceptional children's substitute assistant,
inflicting serious injury by throwing a large rock at him andstriking him in the groin area. The petition was later amended to
allege simple assault in violation of section 14-33(a) of the North
Carolina General Statutes.
On 1 April 2005, another juvenile petition was filed against
C.M.H., alleging that he assaulted a student on 10 February 2005 by
grabbing his clothing and book bag, scratching his arm, biting him
twice on the right arm, and twisting his right arm very hard.
Thereafter, a hearing scheduled for 16 June was continued to
9 August 2005 to allow time for a forensic evaluation of C.M.H.'s
competency to stand trial. At the 9 August adjudicatory hearing,
the trial judge found that C.M.H. admitted the allegations in the
petitions; understood his rights, the nature of the charges, and
the most restrictive disposition that could be imposed; and was
satisfied with his representation. Thus, upon finding that there
was a factual basis for the admission and that C.M.H.'s admission
was the product of his informed choice, the trial court accepted
his admission. The trial court continued disposition until 18
August 2005, under certain conditions, including the submission of
C.M.H.'s grandmother and legal guardian, Janet H., to an immediate
At the 18 August dispositional hearing, evidence was presented
to show that C.M.H. had nine previous hospitalizations for mental
health intervention, and that he was currently receiving
psychiatric treatment at the North Carolina Neuropsychiatry Clinic
in Chapel Hill. There was also evidence presented to show that, as
a result of the groin injury caused by C.M.H., the substituteassistant incurred medical costs of one hundred dollars and missed
eight days of work, accruing lost wages that exceeded five hundred
Based upon the evidence presented at the dispositional
hearing, the trial court ordered C.M.H. to, among other terms: (1)
be placed on juvenile probation for twelve months under the
supervision of a Juvenile Court Counselor with certain conditions;
(2) pay restitution in the amount of five hundred dollars ($500.00)
for the substitute assistant's lost wages; (3) cooperate with Case
Management services and comply with recommendations for further
treatment; and, (4) attend YWCA Youth Intervention Services Work
and Earn It program. Though C.M.H. presents two issues on appeal
from that order, we dismiss one and affirm the other for the
First, C.M.H. contends the trial court erred when it proceeded
in the adjudication of this matter before ascertaining his mental
capacity and competency to stand trial and plead to the offenses
alleged in the petition.
Sections 15A-1001 and 15A-1002 of the North Carolina General
Statutes apply to all cases in which a juvenile is alleged to be
delinquent. See N.C. Gen. Stat. . 7B-2401 (2005) (providing, in
part, that sections 15A-1001 and 15A-1002 of the North Carolina
General Statutes apply to all cases in which a juvenile is alleged
to be delinquent). Section 15A-1001(a) of the North Carolina
General Statutes provides: No person may be tried, convicted, sentenced,
or punished for a crime when by reason of
mental illness or defect he is unable to
understand the nature and object of the
proceedings against him, to comprehend his own
situation in reference to the proceedings, or
to assist in his defense in a rational or
N.C. Gen. Stat. . 15A-1001(a) (2005). Moreover, a defendant's
capacity to proceed may be raised at any time on motion by the
prosecutor, the defendant, defense counsel, or the court. N.C.
Gen. Stat. . 15A-1002(a) (2005). The court may appoint one or more
impartial medical experts to examine the defendant and return a
written report describing the defendant's present state of mental
health at a hearing to determine the defendant's capacity to
proceed. N.C. Gen. Stat. . 15A-1002(b)(1). [T]he issue of
capacity (or competency) is within the 'trial court's discretion,
and [the] determination thereof, if supported by the evidence, is
conclusive on appeal.' State v. Staten, 172 N.C. App. 673, 682
n.3, 616 S.E.2d 650, 657 n.3 (2005) (quoting State v. Wolfe, 157
N.C. App. 22, 30, 577 S.E.2d 655, 661, disc. review denied, 357
N.C. 255, 583 S.E.2d 289 (2003)).
In this case, the trial judge entered an order granting
C.M.H.'s motion to continue the 16 June 2005 adjudicatory hearing
until 9 August 2005, to provide time for a forensic evaluation of
his competency to stand trial. The trial court found that the
Office of the Juvenile Defender would choose who would perform the
forensic evaluation and that a written report of the forensic
evaluation would be distributed to all parties involved.
Furthermore, the trial court allowed that, if C.M.H. was notcompetent to stand trial, then the adjudicatory hearing would be
continued until such time as he was competent.
However, C.M.H. did not include a copy of the transcript from
the 9 August 2005 hearing in the record, nor did he include a copy
of the written report of the forensic evaluation of his competency
to stand trial. Indeed, nothing in the record reveals to this
Court whether or not a written report of the forensic evaluation
was in fact completed, much less whether such report was considered
by the trial court.
The appellant has the burden of providing a record which
allows the appellate courts to properly review the assignment of
error. State v. Burnette, 158 N.C. App. 716, 719, 582 S.E.2d 339,
342 (2003). Moreover,
[t]his Court's review on appeal is limited to
what is in the record or in the designated
verbatim transcript of proceedings. N.C. R.
App. P. 9(a). An appellate court cannot
assume or speculate that there was prejudicial
error when none appears on the record before
State v. Price, 344 N.C. 583, 593-94, 476 S.E.2d 317, 323 (1996)
(citing State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 645
Because we cannot determine based on the record presented
whether the trial court abused its discretion in determining that
C.M.H. had the capacity to proceed with adjudication, C.M.H's
assignment of error must be dismissed.
Second, C.M.H. contends the trial court erred when it orderedhim to pay restitution to the substitute assistant for lost wages
in the amount of five hundred dollars.
Section 7B-2501(a) of the North Carolina General Statutes
allows the trial court to determine at a dispositional hearing, the
amount, terms, and conditions of restitution up to $500.00, payable
within a twelve-month period to any person who has suffered loss
or damage as a result of the offense committed by the juvenile.
N.C. Gen. Stat. . 7B-2506(4) (2005).
C.M.H. contends there was no competent evidence presented as
to the accuracy of the restitution ordered to the substitute
assistant for lost wages. However, the record on appeal includes
only the transcription of Tape 2 of the 18 August 2005
dispositional hearing, and we cannot discern from this portion the
identity of the person who testified regarding the five hundred
dollars incurred in lost wages. Indeed, the person who testified
at the dispositional hearing regarding the lost wages is identified
only as MAN in the transcript.
Nevertheless, based upon what C.M.H. has presented to this
Court, the evidence reveals that there was testimony presented to
the trial court that the substitute assistant was not a salaried
employee but rather was paid based upon the number of days worked
for the school system. As a result of the assault, the substitute
assistant missed eight days of work, causing him to lose more than
five hundred dollars in wages. C.M.H. did not present any evidence
on this issue and, in fact, objected to the amount of restitution
ordered only on the grounds that he was not provided with copies ofmedical bills. Because we cannot assume or speculate that there
was prejudicial error when none appears on the record before [us],
Price, 344 N.C. at 593-94, 476 S.E.2d at 323, we affirm the trial
court's order for C.M.H. to pay restitution in the amount of five
hundred dollars ($500.00) for lost wages.
Dismissed in part, Affirmed in part.
Judges HUDSON and TYSON concur.
Report per rule 30(e).
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