IN THE MATTER OF:
Robeson County
P.L.
No. 05 J 141
Attorney General Roy Cooper, by Assistant Attorney General
Scott T. Slusser, for the State.
Mary McCullers Reece for the respondent-appellant.
ELMORE, Judge.
On 9 January 2006, a juvenile petition was filed alleging that
respondent was a delinquent juvenile and charging him with
misdemeanor larceny for having stolen a phone.
The matter was
heard on 28 February 2006.
The State presented evidence at the hearing which tended to
show the following:
Sharon Williams testified that she was a
teacher at Red Springs Middle School.
On 6 December 2005, just
prior to taking a bathroom break, Williams placed her camera phone
in her desk drawer. When she returned, she saw P.L. at her desk.
Williams noticed that her desk drawer was partially cracked open,
but she had remembered closing the drawer completely when she putthe phone in it. The phone was missing, and Williams began
searching for the phone. Another teacher called the phone, and
Williams could barely hear it ring. However, before she could
search further, the school's bell rang and the principal told her
that she had to release the students. Williams described the phone
as being a Sprint camera phone with silver and black on it.
Williams further testified that she had programmed the phone with
a distinctive “Belltone ring” and that when it was turned off it
would go “ding, ding, ding . . . like a bell.”
Later that day while in the lunchroom, S.P., another student
at the school, saw respondent trying to “cut off” a phone as it
rang. S.P. testified that he believed the phone was the one that
belonged to Williams. S.P. had used the phone previously, and
recognized the color of the phone. S.P. described the phone as
being silver with “Sprint” on it, matching a description provided
by Williams. S.P. further testified that the phone made a noise
when it was turned off, and he never heard any other phone with the
same ring as Williams's phone. N.C., another student, testified
that she saw respondent showing a friend a phone, and she believed
it was Williams's phone because “it looked just like it.”
On 3 March 2006, respondent was adjudicated a delinquent
juvenile for committing the offense of misdemeanor larceny.
Respondent was placed on probation and ordered to pay restitution.
Respondent appeals.
Respondent argues that there was insufficient evidence to
sustain the adjudication.
However, respondent did not renew hismotion to dismiss at the close of all the evidence.
“Appellate
Rule 10(b)(3) states when defendant presents evidence at trial, he
waives his right on appeal to assert the trial court's error in
denying the motion to dismiss at the close of the State's
evidence.” State v. Barfield, 127 N.C. App. 399, 401, 489 S.E.2d
905, 907 (1997)(citing State v. Davis, 101 N.C. App. 409, 411, 399
S.E.2d 371, 372 (1991)). Furthermore, “a defendant who fails to
make a motion to dismiss at the close of all of the evidence may
not attack on appeal the sufficiency of the evidence at trial.”
State v. Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368, 370 (1988); see
also In re Rikard, 161 N.C. App. 150, 155, 587 S.E.2d 467, 470
(2003)(
because the juvenile did not renew his motion to dismiss at
the close of the evidence, his assignment of error was overruled).
Accordingly, the appeal is dismissed.
Appeal dismissed.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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