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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ANTONIO TOREZ COUSART
Filed: 6 March 2007
1. Minors--contributing to delinquency of minor--no requirement jury must agree on
The trial court did not commit plain error in a contributing to the delinquency of a minor
case by failing to require the jury to agree on the offense for which the juvenile could have been
adjudicated delinquent, because: (1) the evidence was sufficient to support a conclusion that
defendant aided or encouraged his younger brother to drive without a license, break into a motor
vehicle, and/or steal stereo equipment from the vehicle; (2) any person who knowingly does any
act to produce, promote, or contribute to any condition of delinquency of a child is in violation of
N.C.G.S. § 14-316.1; (3) the gravamen of the crime is the conduct on the part of the accused
which is his willful causing, encouraging, or aiding; and (4) the requirement of unanimity is
satisfied as long as all jurors agree that the juvenile committed an act whereby he could be
2. Probation and Parole_-failure to make findings required by N.C.G.S. § 15A-
The trial court erred in a misdemeanor larceny and contributing to the delinquency of a
minor case by sentencing defendant to twenty-four months of probation without making the
findings required by N.C.G.S. § 15A-1343.2(d) that more than eighteen months of probation was
required, and defendant's sentence is reversed and remanded for resentencing.
The trial court did not err in a misdemeanor larceny and contributing to the delinquency
of a minor case by ordering defendant to pay $787 restitution even though defendant contends the
record did not support this amount and the court did not comply with the requirements of
N.C.G.S. § 15A-1340.36, because: (1) the owner of the stolen stereo equipment testified at trial
that it originally cost $787; (2) evidence revealed that some stereo components were never
recovered, others were damaged by having wires cut, and the car had a hole in the dashboard; (3)
when, as here, there is some evidence as to the appropriate amount of restitution, the
recommendation will not be overruled on appeal; and (4) the trial court considered the pertinent
factors in setting the amount of restitution.
Appeal by defendant from judgment entered 21 October 2005 by
Judge J. Gentry Caudill in Mecklenburg County Superior Court.
Heard in the Court of Appeals 7 December 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General J. Allen Jernigan, for the State.
Mecklenburg County Office of the Public Defender, by Assistant
Public Defender Julie Ramseur Lewis, for defendant.
Antonio Cousart (defendant) appeals from judgment entered on
his convictions of misdemeanor larceny and contributing to the
delinquency of a minor. We find no error in part and reverse in
In February 2004 defendant was arrested for felony larceny and
contributing to the delinquency of a minor. He was subsequently
indicted for both offenses, as well as breaking and entering a
motor vehicle. The case was tried before a jury at the 17 October
2005 session of criminal court in Mecklenburg County, North
Carolina. At trial, the State's evidence tended to show, in
pertinent part, the following:
M.D. Burpeau testified that on 5 February 2004 he was an
officer with the Charlotte-Mecklenburg Police Department and was
assigned to the night shift. At around 3:00 a.m., Officer Burpeau
drove into the parking lot of an apartment complex, where he
immediately noticed a car driving towards another section of the
complex. His suspicions were aroused because of the late hour, so
Officer Burpeau circled around and drove towards the vehicle. As
he approached the car he had seen, Officer Burpeau noticed a Honda
automobile parked in the lot with a door slightly open and an
interior light on. When he looked into that car, Officer Burpeau
saw that there was a hole in the car's dashboard where a music
system would generally be installed. The car that Officer Burpeau
had seen when he first entered the lot was only about fifty yardsfrom the Honda. When Officer Burpeau reached the car, he saw the
defendant in the front of the car and asked him to step outside.
Defendant explained that he could not get out of the car because he
was paralyzed from the waist down, so Officer Burpeau summoned
another officer for assistance. Defendant told Officer Burpeau
that he and his brother had come to the apartment complex to visit
someone. While they waited for backup to arrive, a young
juvenile approached and identified himself as defendant's fourteen
year old younger brother.
After about ten minutes, Officer Antley of the Charlotte-
Mecklenburg Police Department arrived. When the law enforcement
officers lifted defendant out of the car, they saw the face plate
of a car CD player, and more stereo equipment was found in the
trunk of the car. Defendant claimed ownership of all the stereo
equipment found in the car. He was placed under arrest for
contributing to the delinquency of a minor, specifically for
allowing his younger brother to drive the car. Other testimony
tended to show that the audio equipment found in defendant's car
had been taken from the Honda that night.
The defendant did not present any evidence.
The jury returned verdicts of guilty of misdemeanor larceny
and contributing to the delinquency of a minor, and was unable to
reach a verdict on the charge of breaking and entering a motor
vehicle. Defendant received two suspended forty five day jail
terms. From these convictions and judgments defendant appeals.
 Defendant argues first that, as to contributing to the
delinquency of a minor, the trial court committed plain error by
failing to require the jury to agree on the offense for which the
juvenile could have been adjudicated delinquent. Trial evidence
was sufficient to support a conclusion that defendant aided or
encouraged his younger brother to: (1) drive without a license; (2)
break into a motor vehicle; and/or (3) steal stereo equipment from
the vehicle. Defendant contends that the trial court was required
to instruct the jury that it must agree on one of these specific
acts, and that the court's failure to do so is a violation of
Article I, § 24 of the North Carolina Constitution which protects
defendant's right to a unanimous jury verdict. We disagree.
The North Carolina Constitution and North Carolina Statutes
require a unanimous jury verdict in a criminal jury trial. State
v. Lawrence, 360 N.C. 368, 373-74, 627 S.E.2d 609, 612 (2006).
In State v. Hartness, 326 N.C. 561, 391 S.E.2d
177 (1990), this Court considered whether
disjunctive jury instructions . . . for
charges of indecent liberties with a minor
resulted in an ambiguous or uncertain verdict
such that a defendant's right to a unanimous
verdict might have been violated. As
explained in a subsequent opinion discussing
the Hartness line of cases, this Court held
that if the trial court merely instructs the
jury disjunctively as to various alternative
acts which will establish an element of the
offense, the requirement of unanimity is
State v. Lawrence, 360 N.C. 368, 373-74, 627 S.E.2d 609, 612 (2006)
(quoting State v. Lyons, 330 N.C. 298, 303, 412 S.E.2d 308, 312
(1991)). In Hartness, the Court concluded that a violation of thecrime of indecent liberties is a single offense which may be
proved by evidence of the commission of any one of a number of
acts. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (1990).
The Court reasoned that the accused's purpose for committing such
act is the gravamen of [the] offense; the particular act performed
is immaterial. Id. Thus, Hartness concluded, there was no
unanimity problem even if jurors did not agree on the particular
act(s) that occurred.
In the instant case, defendant was charged with violating N.C.
Gen. Stat. § 14-316.1 (2005):
Any person who is at least 16 years old who
knowingly or willfully causes, encourages, or
aids any juvenile within the jurisdiction of
the court to be in a place or condition, or to
commit an act whereby the juvenile could be
adjudicated delinquent . . . shall be guilty
of a Class 1 misdemeanor. . . .
Simply stated, any person who knowingly does any act to produce,
promote or contribute to any condition of delinquency of a child is
in violation of the statute. State v. Sparrow, 276 N.C. 499, 509,
173 S.E.2d 897, 903 (1970) (emphasis added). We conclude, applying
the reasoning of Hartness and cases interpreting it, that the
gravamen of the crime of contributing to the delinquency of a minor
is the conduct on the part of the accused: his willful caus[ing],
encourag[ing], or aid[ing]. . .. We further conclude that the
requirement of unanimity is satisfied as long as all jurors agree
that the juvenile committed an act whereby [he] could be
adjudicated delinquent . . .. See G.S. § 14-316.1. They neednot, however, agree on the particular act. This assignment of
error is overruled.
 Defendant next argues that the court erred by sentencing
him to twenty-four months probation without finding, as required by
N.C. Gen. Stat. § 15A-1343.2(d) (2005), that more than eighteen
months probation was necessary. We agree.
Defendant had no prior convictions and was properly found to
have a Prior Record Level I for two Class 1 misdemeanors. N.C.
Gen. Stat. § 15A-1340.21(b)(1) (2005). The trial court properly
sentenced defendant to terms of forty-five days for each offense,
and placed him on supervised probation. However, the trial court
did not comply with G.S. § 15A-1343.2(d):
. . . Unless the court makes specific findings
that longer or shorter periods of probation
are necessary, the length of the original
period of probation . . . shall be as follows:
(1) For misdemeanants sentenced to community
punishment, not less than six nor more than 18
months. . . .
Defendant argues, and the State concedes, that the trial court
erred by placing defendant on probation for twenty-four months
without making the findings required by G.S. § 15A-1343.2(d).
Accordingly, defendant's sentence must be reversed and remanded for
 Finally, defendant argues that the trial court erred by
ordering defendant to pay $787.00 restitution, on the grounds that
(1) the record did not support this amount of restitution; and (2)the court did not comply with the requirements of N.C. Gen. Stat.
§ 15A-1340.36 (2005). Assuming, arguendo
, that defendant properly
preserved these issues for review, we reject defendant's arguments.
he owner of the stolen stereo equipment testified at trial
that it originally cost $787.00. Other evidence indicated that
some stereo components were never recovered, others were damaged by
having wires cut, and that the car had a hole in the dashboard.
The trial court found, based on viewing the CD equipment and
reviewing the testimony of the law enforcement officers and the
car's owner, that restitution in the amount that the stereo had
originally cost was reasonable to cover the damage that was done
to the vehicle and to the equipment.
'[T]he amount of restitution recommended by the trial court
must be supported by evidence adduced at trial or at sentencing.'
State v. Shelton
, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233
(2004) (quoting State v. Wilson
, 340 N.C. 720, 726, 459 S.E.2d 192,
196 (1995)) (citation omitted). However, '[w]hen, as here, there
is some evidence as to the appropriate amount of restitution, the
recommendation will not be overruled on appeal.' State v. Davis
167 N.C. App. 770, 776, 607 S.E.2d 5, 10 (2005) (quoting State v.
, 80 N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986)). This
assignment of error is overruled.
We have reviewed defendant's remaining argument, that the
trial court failed to consider certain factors in setting the
amount of restitution. Assuming, arguendo
, that the issue is
preserved for review, we find it to be without merit. For the reasons discussed above, we conclude that defendant
had a fair trial, free of reversible error. However, his sentence
must be reversed and remanded for resentencing.
No error in part, reversed and remanded in part.
Judges GEER and JACKSON concur.
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