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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.
IN THE MATTER OF: D.A.S.
NO. COA06-1133
Filed: 1 May 2007
1. Juveniles--delinquency--denial of motion for continuance--psychological evaluation
The trial court did not err in a juvenile delinquency and probation violation case by
denying appellant juvenile's motion to continue and by failing to consider his psychological
history during the dispositional hearing, because: (1) the trial court possessed the discretion to
deny the juvenile's motion to continue to obtain cumulative documentation and did not abuse its
discretion when it denied his motion to continue in order for the juvenile's counsel to obtain a
four-year-old psychological evaluation; and (2) the juvenile's more recent psychological
information was included in his Juvenile-Family Data Sheet.
2. Juveniles--delinquency--Level 3 disposition--commitment to youth development
center
The trial court did not err in a juvenile delinquency and probation violation case by
finding appellant juvenile had committed a violent offense and by entering a Level 3 disposition
and commitment order placing him in a youth development center, because: (1) the trial court
found the juvenile committed a serious Class A-1 misdemeanor and had a high prior delinquency
history; (2) the trial court possessed the discretion to enter the delinquency Level 3 under
N.C.G.S. § 7B-2508; and (3) the juvenile failed to show the trial court abused its discretion.
3. Probation and Parole_-court asked counselor to state juvenile's probation terms
and conditions_-clarification
The trial court did not err in a juvenile delinquency and probation violation case by
asking the juvenile court counselor to state the juvenile's probation terms and conditions,
because: (1) the trial court's statement that the district attorney should ask the counselor about
the juvenile's probation terms and conditions was neither opinion nor hearsay testimony; (2) the
court's question clarified the counselor's testimony and provided the court with a better
understanding of the counselor's recommended disposition; and (3) the juvenile failed to show
how the trial court's question prejudiced him.
4. Appeal and Error--preservation of issues--failure to cite authority
Although appellant juvenile contends the trial court erred when it entered its findings of
fact in a juvenile delinquency and probation violation case, this assignment of error is dismissed
because: (1) the juvenile failed to cite any authority supporting his argument and adopted and
incorporated the arguments set out in the previous argument; (2) the juvenile failed to cite any
legal authority in any section of his brief to support his argument; and (3) N.C. R. App. P.
28(b)(6) requires the body of the argument shall contain citations of the authorities upon which
the appellant relies.
Appeal by juvenile from orders entered 23 February 2006 and 23
March 2006 by Judge Bradley R. Allen in Alamance County District
Court. Heard in the Court of Appeals 11 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Rebecca E. Lem, for the State.
Jon W. Myers, for juvenile-appellant.
TYSON, Judge.
D.A.S. (the juvenile) appeals from adjudication orders and
disposition and commitment order entered finding him to be
delinquent for assault on a government employee and activating his
suspended sentence after a probation violation hearing. We affirm.
I. Background
On 23 January 2006, the fourteen-year-old juvenile attended a
behavioral and emotionally handicapped class with three other
students taught by Alamance County Teacher Latoya Turner (Ms.
Turner). The juvenile became angry after Ms. Turner would not
immediately assist him. Ms. Turner was working with other students
in the classroom. Ms. Turner told the juvenile to calm down.
After the juvenile continued to disrupt the classroom, Ms. Turner
told the juvenile to leave the classroom. The juvenile threw his
pencil and class work on the floor and stated, F*** you, f*** the
school and f*** you all. Ms. Turner opened the classroom door and
held it open with her hand to allow the juvenile to leave. The
juvenile walked toward Ms. Turner and kicked the door with
sufficient force to sprain Ms. Turner's wrist. The juvenile
admitted he intentionally kicked the door.
On 21 February 2006, a juvenile petition was filed against the
juvenile for assault on a government employee and a motion for
review for a probation violation for his previous 6 October 2005adjudication of delinquency for simple assault and six months
probation.
On 23 February 2006, the trial court adjudicated the juvenile
to be delinquent for assault on a government employee and for
violating the terms of the conditions of his juvenile probation.
On 23 March 2006, the trial court entered a Level 3 disposition and
commitment order placing the juvenile in a youth development center
for a minimum of six months. The juvenile appeals.
II. Issues
The juvenile argues the trial court erred when it: (1) denied
his motion to continue; (2) entered a Level 3 delinquency; (3)
asked the juvenile court counselor to state the juvenile's
probation terms and conditions; and (4) entered findings of fact.
III. Psychological Evaluation
[1] The juvenile argues the trial court erred when it denied
his motion to continue. The juvenile also argues the trial court
erred when it failed to consider his psychological history during
the dispositional hearing. We disagree.
A. Standard of Review
When reviewing a denial of a motion to continue, this Court
must determine whether the trial court abused its discretion. In
re Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002).
An abuse of discretion occurs when the trial court's ruling is so
arbitrary that it could not have been the result of a reasoned
decision. Id. (quotations and citations omitted).
B. Analysis
Under N.C. Gen. Stat. § 7B-2501(a) (2005), the trial court
may consider written reports or other evidence concerning the
needs of the juvenile at a dispositional hearing. The court may
consider any evidence, including hearsay evidence as defined in
G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable,
and necessary to determine the needs of the juvenile and the most
appropriate disposition. Id. The juvenile and the juvenile's
parent, guardian, or custodian shall have an opportunity to present
evidence, and they may advise the court concerning the disposition
they believe to be in the best interests of the juvenile. N.C.
Gen. Stat. § 7B-2501(b) (2005).
Under N.C. Gen. Stat. § 7B-2413 (2005):
The court shall proceed to the dispositional
hearing upon receipt of the predisposition
report. A risk and needs assessment,
containing information regarding the
juvenile's social, medical, psychiatric,
psychological, and educational history, as
well as any factors indicating the probability
of the juvenile committing further delinquent
acts, shall be conducted for the juvenile and
shall be attached to the predisposition
report.
The trial court may continue the dispositional hearing to
enable the juvenile to gather and present evidence. In re Vinson,
298 N.C. 640, 662, 260 S.E.2d 591, 605 (1979). If the juvenile
requests a continuance, when determining the best interest of a
child, any competent and relevant evidence to a showing of the best
interest of that child must be heard and considered by the trial
court, subject to the discretionary powers of the trial court to
exclude cumulative testimony. In re Shue, 311 N.C. 586, 597, 319
S.E.2d 567, 574 (1984). The juvenile's attorney moved to continue the dispositional
hearing in order to obtain a psychological evaluation dated 24 May
2002 that was not included in the juvenile's court file. The trial
court denied the motion.
The trial court reviewed and determined the juvenile's
Juvenile-Family Data Sheet, Risk Assessment, and Needs Assessment.
The Juvenile-Family Data Sheet addressed the juvenile's
psychological condition on 7 April 2004 and stated the juvenile
has been prescribed Adderall for his mental health issues in the
past. He presently is still on that medication and is being
followed by Dr. Ward at Children and Youth Services. The trial
court did not consider the juvenile's four-year-old 24 May 2002
psychological evaluation which was conducted when he was
approximately ten-years-old.
The trial court possessed the discretion to deny the
juvenile's motion to continue to obtain cumulative documentation
and did not abuse its discretion when it denied his motion to
continue in order for the juvenile's counsel to obtain the four-
year-old psychological evaluation. The juvenile's more recent
psychological information was included in his Juvenile-Family Data
Sheet. We do not address whether a continuance would have been
appropriate in the absence of a current psychological evaluation.
This assignment of error is overruled.
IV. Dispositional Level
[2] The juvenile argues the trial court erred when it found he
had committed a violent offense and entered a Level 3 dispositionand commitment order placing him in a youth development center. We
disagree.
Once a juvenile is placed in a dispositional level, the
statutes provide dispositional alternatives which may be utilized
by the trial court. In re Robinson, 151 N.C. App. at 737, 567
S.E.2d at 229. However, in those instances where there is a
choice of level, there are no specific guidelines solely directed
at resolving that issue. Id. Accordingly, choosing between two
appropriate dispositional levels is within the trial court's
discretion. Id.
N.C. Gen. Stat. § 7B-2506 (2005) lists twenty-four
dispositional alternatives for a juvenile delinquent. The trial
court may [c]ommit the juvenile to the Department for placement in
a youth development center in accordance with G.S. 7B-2513 for a
period of not less than six months. N.C. Gen. Stat. § 7B-2506(24)
(2005).
The juvenile was adjudicated delinquent for assault on a
government employee. Assault on a government employee is a Class
A1 misdemeanor. N.C. Gen. Stat. § 14-33(c) (2005). The
delinquency history level for a delinquent juvenile is determined
by calculating the sum of the points assigned to each of the
juvenile's prior adjudications and to the juvenile's probation
status, if any, that the court finds to have been proved in
accordance with this section. N.C. Gen. Stat. § 7B-2507(a)
(2005).
The juvenile correctly recognizes that under N.C. Gen. Stat.
§ 7B-2508, a Class A-1 misdemeanor is a serious offense. SeeN.C. Gen. Stat. § 7B-2508(a)(2) (Adjudication of a Class A1
misdemeanor is a serious offense.). The trial court's statement
that this assaultive behavior was violent does not reflect that
the trial court incorrectly labeled the offense under N.C. Gen.
Stat. § 7B-2508. The trial court found the juvenile to be a Level
3 because he committed a serious Class A-1 misdemeanor and he had
a high prior delinquency history. See N.C. Gen. Stat. § 7B-2507.
The trial court possessed the discretion to enter the delinquency
Level 3. N.C. Gen. Stat. § 7B-2508. The juvenile has failed to
show that the trial court abused its discretion in entering a Level
3 disposition. This assignment of error is overruled.
V. The State's Direct Examination
[3] The juvenile argues the trial court erred when it asked
the juvenile court counselor to state the juvenile's probation
terms and conditions. We disagree.
The court may interrogate witnesses, whether called by itself
or by a party. N.C. Gen. Stat. § 8C-1, Rule 614(b) (2005). The
court may also question a witness for the purpose of clarifying a
witness'[s] testimony and for promoting a better understanding of
it. State v. Chandler, 100 N.C. App. 706, 710, 398 S.E.2d 337,
339 (1990). Such examination must be conducted with care and in
a manner which avoids prejudice to either party. Id. (A
witness's testimony was neither hearsay nor prejudicial to the
defendant.).
Juvenile Court Counselor Chris Stone (Stone) testified the
juvenile was sentenced to six months suspended for simple assault
and placed on probation on 6 October 2005. The district attorneyasked Stone whether he had a recommendation for the juvenile's
disposition for his current case. The trial court stated, [y]ou
need to ask him what were the terms of his conditions for the
probation. In response, the district attorney asked Stone about
the juvenile's terms and conditions from his probation.
The trial court's statement that the district attorney should
ask Stone about the juvenile's probation terms and conditions was
neither opinion nor hearsay testimony. The court's question
clarified Stone's testimony and provided the court with a better
understanding of Stone's recommended disposition. The juvenile has
failed to show how the trial court's question prejudiced him. This
assignment of error is overruled.
VI. Findings of Fact
[4] The juvenile argues the trial court erred when it entered
its findings of fact. We dismiss this assignment of error.
The juvenile has failed to cite any authority supporting his
argument and adopt[ed] and incorporate[d] the arguments set out
in the previous argument. The juvenile failed to cite any legal
authority in any section of his brief to support his argument that
the trial court erred when it entered its findings of fact.
The body of the argument . . . shall contain citations of the
authorities upon which the appellant relies. N.C.R. App. P.
28(b)(6) (2007); see Animal Legal Def. Fund v. Woodley, 181 N.C.
App. 594, 597, 640 S.E.2d 777, 779 (2007) ([W]e will not review
[appellants]'s unargued assignments of error.). This assignment
of error is abandoned and dismissed.
VII. Conclusion
The trial court did not abuse its discretion when it denied
the juvenile's motion to continue for his counsel to obtain the
four-year-old cumulative psychological report. Documentation
supporting the juvenile's more recent psychological condition was
before the trial court during the delinquency hearing.
The trial court did not abuse its discretion when it
adjudicated the juvenile to be a Level 3 delinquent and placed him
in a youth development center.
The trial court did not prejudice the juvenile when it asked
the district attorney to clarify Stone's testimony regarding his
recommendation for the juvenile's Level 3 delinquency.
The juvenile has failed to cite any authority or argue his
assignment of error regarding the trial court's findings of fact.
The juvenile received a fair hearing, free from prejudicial
errors he preserved, assigned, and argued.
Affirmed.
Judges HUNTER and JACKSON concur.
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