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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-662


Filed: 15 May 2007

                                Orange County
J.B.,                            No. 05 JB 115

    Appeal by juvenile from order entered 13 December 2005 by Judge Joseph M. Buckner and from order entered 24 January 2006 by Judge M. Patricia Devine in Orange County District Court. Heard in the Court of Appeals 11 January 2007.

    Attorney General Roy Cooper, by Assistant Attorney General LaShawn L. Strange, for the State.

    Lisa Skinner Lefler for juvenile-appellant.

    GEER, Judge.

    The juvenile J.B. ("Jake"),   (See footnote 1)  who was adjudicated delinquent, appeals from the denial of his pretrial motion to suppress and a disposition order requiring, inter alia, the payment of restitution. We believe that In re J.L.B.M., 176 N.C. App. 613, 627 S.E.2d 239 (2006), is dispositive: Because the trial court failed to make any findings of fact in support of its denial of the motion to suppress, we must remand for entry of findings of fact. In the absence of such findings, we are unable to effectively review the trial court's ruling.     With respect to Jake's challenge to the restitution order, we find that, during the disposition phase, defense counsel accepted the ordering of restitution in an amount not exceeding $500.00. Accordingly, we find no basis for overturning the trial court's order regarding restitution.


    On 24 September 2005, break-ins occurred at two homes in Chapel Hill, and various items were stolen, including a digital camera. On the same day, Jake was interviewed by police because he was seen "peeping" around the back of a residence in the same neighborhood. Subsequently, the police received information that Jake had passed along a digital camera to another student at his middle school.
    Based on this information, Officer DiCostanzo of the Chapel Hill Police Department went to the school to speak with Jake, who at the time was a 13-year-old seventh grader enrolled in special education classes. Jake was removed from class by a uniformed school resource officer and escorted to a conference room. Assembled in the room were Officer DiCostanzo, the school resource officer, the assistant principal, and one of the principal's interns. Once Jake arrived, the door to the conference room was shut.
    Officer DiCostanzo began by asking Jake whether he would agree to answer questions about the recent break-ins. Jake agreed and initially denied any wrongdoing. He acknowledged that he was in the vicinity of the break-ins on the day in question, but claimedthat he was merely going door-to-door trying to be hired to do small jobs.
    Officer DiCostanzo then disclosed to Jake that the stolen digital camera had been recovered. At this point, the assistant principal began to encourage Jake to "do the right thing" and tell the truth. Jake asked "if he got the stuff back was he still gonna be in trouble." The officer replied that "it would help" to return the items, but that nonetheless "this thing is going to court." The officer also said that he could potentially seek an order to hold Jake in juvenile detention prior to a trial.
    Before Jake made any further statements, Officer DiCostanzo told Jake that he was not under arrest, that he was free to leave, and that he was not required to speak about the case. The officer asked whether Jake understood that he was not under arrest and that he did not have to speak, and he nodded "yes" in response. Jake then explained to the officer the details of how he and a friend broke into the two houses and stole a camera, a cell phone, and jewelry. At the officer's request, Jake provided a written statement admitting to the offenses.
    After Jake finished the written statement, the school bell rang, signaling the end of the school day. Officer DiCostanzo concluded the interview and told Jake that he should leave so that he would not miss his bus. The interview had lasted about 30 to 45 minutes.
    Officer DiCostanzo returned to the police station and picked up one of his colleagues, Officer Hunter. Together, the twoofficers drove to Jake's residence, but found no one there. Jake, however, soon arrived home on the school bus and invited the officers inside to show them the stolen property. Officer DiCostanzo explained that he would need a warrant to search the house, since Jake could not provide valid consent.
    Officer DiCostanzo then left to obtain a search warrant, leaving Officer Hunter waiting outside the residence with Jake. When Officer DiCostanzo returned with the search warrant, Jake immediately handed the officers one of the stolen rings that he had been keeping in his pocket. The officers then went inside the house with Jake, and Jake proceeded to lead the officers to various spots where he had hidden the stolen jewelry. Jake also disclosed that he had thrown some jewelry on the top of a shed at a nearby gas station. Officer DiCostanzo and Jake walked down to the gas station and recovered the jewelry, which was still on the roof of the shed.
    On 19 October 2005, the State filed two juvenile petitions, one for each home he entered, alleging that Jake was a delinquent juvenile for breaking and entering and larceny. Prior to the adjudication and disposition hearing, Jake moved to suppress the statements he made to Officer DiCostanzo on the grounds that he was interrogated by police in a custodial setting without being afforded Miranda warnings and without having a parent or guardian present. Jake also moved to suppress the physical evidence that he turned over to police, contending that this evidence was "fruit of the poisonous tree."    The district court conducted a hearing on the motion to suppress on 13 December 2005. Immediately following testimony from both Officer DiCostanzo and Jake and without hearing oral argument from counsel, the court orally "rule[d] that there is no custody for purposes of this interrogation" and denied the motion to suppress. The court subsequently entered a written order that stated in its entirety: "After hearing evidence from investigator Joe Dicostanzo [sic] and the juvenile, the juvenile's motion to suppress statements and evidence seized is denied."
    On 24 January 2006, the district court held an adjudication and disposition hearing, at which Jake admitted the allegations in the two juvenile petitions. Jake signed a transcript of admission, but renewed his arguments with respect to the motion to suppress. Based on Jake's admission, the court adjudicated Jake a delinquent juvenile. During the disposition phase of the proceeding, the court placed Jake on 12 months probation, with associated conditions, and ordered Jake to pay approximately $500.00 in restitution to the theft victims with the exact figure to be determined by the district attorney's office. Jake timely appealed to this Court.

    In his first argument on appeal, Jake assigns error to the trial court's denial of his motion to suppress evidence of his statements to the police and the physical evidence uncovered as a result of those statements. He contends that the statements and evidence were obtained as a result of a custodial interrogationconducted in violation of N.C. Gen. Stat. § 7B-2101 (2005) and without his having been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
    In addition to the constitutional rights set forth in Miranda, N.C. Gen. Stat. § 7B-2101 establishes mandatory procedures for the custodial interrogation of juvenile suspects:
            (a) Any juvenile in custody must be advised prior to questioning:

                (1)    That the juvenile has a right to remain silent;

                (2)    That any statement the juvenile does make can be and may be used against the juvenile;

                (3)    That the juvenile has a right to have a parent, guardian, or custodian present during questioning; and

                (4)    That the juvenile has a right to consult with an attorney and that one will be appointed for the juvenile if the juvenile is not represented and wants representation.

            (b) When the juvenile is less than 14 years of age, no in-custody admission or confession resulting from interrogation may be admitted into evidence unless the confession or admission was made in the presence of the juvenile's parent, guardian, custodian, or attorney. . . .

            (c) If the juvenile indicates in any manner and at any stage of questioning pursuant to this section that the juvenile does not wish to be questioned further, the officer shall cease questioning.

            (d) Before admitting into evidence any statement resulting from custodial interrogation, the court shall find that thejuvenile knowingly, willingly, and understandingly waived the juvenile's rights.

N.C. Gen. Stat. § 7B-2101 (emphasis added). The rights provided by both § 7B-2101 and Miranda apply only if the juvenile is in custody. State v. Gaines, 345 N.C. 647, 661, 483 S.E.2d 396, 404-05, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177, 118 S. Ct. 248 (1997).
    It is undisputed that Jake was 13 years old at the time of the questioning and that no parent, guardian, custodian or attorney was present during the time Jake made any statements. "Therefore, if the juvenile's admissions were obtained during a custodial interrogation, they would be inadmissible." J.L.B.M., 176 N.C. App. at 624, 627 S.E.2d at 246.
    The critical question before the trial court was thus whether Jake was "in custody" at the time he made his statements. In determining whether a suspect is in custody, "the appropriate inquiry . . . is, based on the totality of the circumstances, whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." State v. Buchanan, 353 N.C. 332, 339, 543 S.E.2d 823, 828 (2001) (internal quotation marks omitted).
    This inquiry is an objective one that requires us to consider all the facts and circumstances from the perspective of a reasonable person in the juvenile's position. In re W.R., __ N.C. App. __, __, 634 S.E.2d 923, 926, temporary stay allowed, 361 N.C. 167, 637 S.E.2d 544 (2006). While "the trial court should consider the juvenile's age in ruling on the admissibility of a confession,. . . the youth of a juvenile 'will not preclude the admission of his inculpatory statement absent mistreatment or coercion by the police officers.'" Id. (quoting State v. Fincher, 309 N.C. 1, 8, 305 S.E.2d 685, 690 (1983)).
    As our Supreme Court explained with respect to motions to suppress:
            When the competency of evidence is challenged and the trial judge conducts a voir dire to determine admissibility, the general rule is that he should make findings of fact to show the bases of his ruling. If there is a material conflict in the evidence on voir dire, he must do so in order to resolve the conflict. If there is no material conflict in the evidence on voir dire, it is not error to admit the challenged evidence without making specific findings of fact, although it is always the better practice to find all facts upon which the admissibility of the evidence depends. In that event, the necessary findings are implied from the admission of the challenged evidence.

State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980) (internal citations omitted). "Findings and conclusions are required in order that there may be a meaningful appellate review of the decision." State v. Horner, 310 N.C. 274, 279, 311 S.E.2d 281, 285 (1984).
    More specifically, our Supreme Court has held with respect to the admissibility of a confession: "In the establishment of a factual background by which to determine whether a confession meets the tests of admissibility, the trial court must make the findings of fact." State v. Barnes, 264 N.C. 517, 521, 142 S.E.2d 344, 346 (1965). "Absent findings of fact, this Court is unable to saywhether [the trial court] committed error in admitting the contested confession." Id. at 522, 142 S.E.2d at 347.
    In this case, the trial court made no findings of fact _ oral or written _ to explain what facts and circumstances it relied upon to determine that a reasonable person in Jake's position _ a 13- year-old seventh grader attending special education classes _ would have believed he was free to leave the conference room while being questioned by Officer DiCostanzo. Based upon our review of the transcript, which included testimony by Jake in support of the motion to suppress, we believe the record contains a material conflict in the evidence such that we cannot presume facts to support the trial court's ruling.
    The issues presented by this case are not straightforward. The State points to Officer DiCostanzo's assurances to Jake that he was not under arrest, was free to leave, and was not in custody. Yet, Jake had already made an incriminating statement prior to those assurances. With respect to statements made following the officer's representations, Jake argues that he had already been told that his case would go to court regardless of what else occurred and that he was subject to being held in detention pending any trial. The details of what was said and what a reasonable juvenile in Jake's situation would have understood are in dispute.
    Under very similar circumstances, this Court recently held that _ in the absence of findings of fact _ "we cannot discern whether the juvenile's admissions were made in response to custodial interrogation in violation of the juvenile'sconstitutional and statutory rights." J.L.B.M., 176 N.C. App. at 625, 627 S.E.2d at 246. The Court "therefore remand[ed] for findings on whether the juvenile was in custody at the time of his questioning, and whether his statements were the result of interrogation." Id., 627 S.E.2d at 246-47.
    Without findings of fact, we are not in a position to determine whether this case more closely resembles In re Hodge, 153 N.C. App. 102, 568 S.E.2d 878, appeal dismissed and disc. review denied, 356 N.C. 613, 574 S.E.2d 681 (2002), or W.R. In Hodge, this Court concluded that a juvenile, who was interviewed in his home with his mother present, was not in custody when the investigator prefaced her questions by saying "you don't have to talk to me" and "I am not going to arrest you." 153 N.C. App. at 108-09, 568 S.E.2d at 882. In contrast, in W.R., this Court held that the 14-year-old juvenile was in custody when (1) he was escorted to the assistant principal's office where he was repeatedly questioned over the course of 30 minutes by the principal, the assistant principal, and the school resource officer, who was a member of the Greensboro Police Department, and (2) at some point in the interview, he was searched by the officer. __ N.C. App. at __, 634 S.E.2d at 926. This Court noted "[t]here is nothing in the record to indicate the juvenile was free to leave," and held "[g]iven the totality of these circumstances, a reasonable person standing in the place of the juvenile would have believed that he was restrained in his movement to the degree associated with a formal arrest." Id. at __, 634 S.E.2d at 926-27.    Neither of these cases is identical to this one. Although representations like those made by Officer DiCostanzo were made to the juvenile in Hodge, that interview took place in the juvenile's home and in the presence of his mother. On the other hand, W.R., in contrast to this case, involved no assurances, and the juvenile was searched by a police officer prior to his making incriminating statements. Without findings of fact by the trial court, we cannot determine whether the trial court could properly conclude that this case is more similar to Hodge than to W.R. Accordingly, we remand to allow the trial court to make the findings of fact necessary to support its determination that Jake was not in custody at the time he was questioned.

    In his second argument on appeal, Jake contends that the trial court committed reversible error when it ordered him to pay restitution "in the neighborhood of $500" with the precise amount "to be determined exactly by the D.A.'s office." Relying on In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001), Jake asserts that the court never made a determination that its restitution order was "fair and reasonable, related to the needs of the child, and calculated to promote the best interest of the juvenile . . . ." Id. at 464, 546 S.E.2d at 410.   (See footnote 2)      Given the severity of the offenses, the trial court had discretion to designate Jake as either a Level I or Level II offender. See N.C. Gen. Stat. § 7B-2508 (2005). Based on its decision to assign Jake to Level I, the court was authorized to "[r]equire restitution, full or partial, up to five hundred dollars ($500.00), payable within a 12-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). For Level II offenders, the trial courts may impose restitution requirements in excess of $500.00. See N.C. Gen. Stat. §§ 7B-2506(22), -2508(d).
    In the agreement leading up to Jake's admission of the allegations in the petition, the parties left to the discretion of the trial court whether Jake should receive a Level I disposition or a Level II disposition. Prior to ruling, the court heard argument regarding the appropriate level and restitution. After a discussion of the fact that the exact amount of restitution was still to be determined, the court inquired whether Jake's counsel was taking the position that the court could not yet assign a level. After the juvenile's counsel clarified that she agreed a level could be assigned, the court stated to her: "You just want an accurate amount of restitution." The juvenile's counsel replied: "Well, and I thought that that might be determinative of the Court in what level [sic] and I would argue that this is a Level I because the restitution is slightly under $500." The State arguedin response that Level II was appropriate based on the nature of the offense. The trial court ultimately imposed a Level I disposition and provided that Jake was "to pay his share of the restitution," which was estimated "to be in the neighborhood of $500."
    We hold that the juvenile, through counsel, acknowledged that a payment of restitution was appropriate and specifically used the amount of restitution to argue successfully in favor of a lesser offender level. Moreover, there is nothing in the record to suggest that the amount of restitution was arbitrary or that Jake ever opposed the restitution award at trial on any basis. See, e.g., N.C. Gen. Stat. § 7B-2506(4) ("the court shall not require the juvenile to make restitution if the juvenile satisfies the court that the juvenile does not have, and could not reasonably acquire, the means to make restitution"). Given defense counsel's agreement with the order of restitution, we conclude that the order is supported by the record and comports with Schrimpsher.

    Affirmed in part and remanded in part.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

Footnote: 1
    In order to maintain the juvenile's privacy, we will use the pseudonym "Jake" throughout this opinion.
Footnote: 2
    We note that the juvenile does not specifically object to the trial court's decision to allow the district attorney's office to determine the precise amount of restitution. In any event, this Court has previously acknowledged this practice and found it to be acceptable under the Juvenile Code. See In re M.A.B., 170 N.C. App. 192, 194, 611 S.E.2d 886, 887-88 (2005) (upholding, against challenge that such action constituted an impermissible delegationof judicial authority, trial court's decision to allow Juvenile Court Counselor to determine exact amount of restitution).

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