IN THE MATTER OF: New Hanover County
No. 06 J 6
V.S.H.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Gary A. Scarzafava, for the State.
Sofie W. Hosford for juvenile-appellant.
HUNTER, Judge.
On 10 November 2005, M. D. Coleman, III, was assistant
principal at Wilson Middle School. Mr. Coleman testified that in
the morning before school, the students are divided up into three
areas. Mr. Coleman explained that “any time someone steps over to
an unauthorized area, there's potential problems.” On this date,
there was an altercation on the sixth grade side. According to Mr.
Coleman, an eighth grade student had walked over to the sixth grade
side and was “starting something with a seventh grade student.”
Mr. Coleman interceded and asked the eighth grade student to back
up. However, she became louder and went after the other student,
so Mr. Coleman had to physically restrain her. Mr. Coleman
testified that they ended up on the ground, at which time he heard
a student say “get off of her” and he received “two blows to theback.” Mr. Coleman got up to see who had hit him, but a large
group of students had gathered and he had to turn his attention
back to the first student. Once he regained control of the
situation, he heard from some students that they knew who had hit
him. One of the students, Lashea Evans, testified that she saw
juvenile punch Mr. Coleman in the back twice.
On 3 January 2006, a juvenile petition was filed alleging that
juvenile had committed the offense of assault on a government
officer or employee. A hearing was held on the matter on 28
February 2006. On the same date, juvenile was adjudicated a
delinquent juvenile for committing the charged offense. A Level 1
disposition order was entered placing juvenile on probation for six
months. Juvenile appeals.
Juvenile first argues that there was insufficient evidence to
support her adjudication. However, juvenile concedes that she
failed to preserve this assignment of error by moving for a
dismissal, either at the end of the State's case or at the close of
the evidence. Thus, she is precluded from raising this issue on
appeal. In re Clapp, 137 N.C. App. 14, 19, 526 S.E.2d 689, 693
(2000); In re Davis, 126 N.C. App. 64, 66, 483 S.E.2d 440, 441-42
(1997); N.C.R. App. P. 10(b)(3); see also State v. Spaugh, 321 N.C.
550, 552-53, 364 S.E.2d 368, 370 (1988). Accordingly, we decline
to review juvenile's argument.
Juvenile next argues that the trial court erroneously admitted
hearsay testimony. Mr. Coleman testified regarding how students
came to him with information regarding who hit him: [Mr. Coleman:] No, kids were talking
about it. As a matter of fact, two of the
classroom teachers even said that she was in
the classroom talking about the incident in
the classroom. And as one of the statements
said, that was going on as well.
[Defense Counsel:] Talking about the
incident but not saying that she hit you, is
that correct?
[Mr. Coleman:] Yeah, said that, too.
[Defense Counsel:] What teacher?
[Mr. Coleman:] Ms. -- it was Ms. Davis
and Ms. Whist's classroom.
[Defense Counsel:] And the teachers told
you that?
[Mr. Coleman]: Uh-uh. The teachers said
she was talking about the incident. They
didn't go into detail. I didn't get into
detail and question them, but they said she
was talking about the incident in class.
Shortly thereafter, on re-direct, the State asked Mr. Coleman the
question that led to the instant assignment of error:
[State:] But the teachers who reported
that [juvenile] was talking about the incident
specifically told you that she had been
bragging about hitting you, is that correct?
[Mr. Coleman:] Well, the teachers, they
said --
[Defense Counsel:] Objection. Hearsay.
They're not here to --
[The Court]: Overruled.
[Mr. Coleman]: They said that she had
been talking about it in class, and then, I
didn't further question them about it. That's
when I started questioning students.
Juvenile argues that Mr. Coleman's testimony constituted hearsay
because he testified about what the teachers told him concerningstatements purportedly made by juvenile. Juvenile claims that
absent this evidence, there would have been a different result at
trial. However, even assuming arguendo that admission of the
evidence was in error, we find no prejudicial error. “In a bench
trial, it is presumed that the judge disregarded any incompetent
evidence.” In re Huff, 140 N.C. App. 288, 298, 536 S.E.2d. 838,
845 (2000). Thus, in light of Evans's testimony that she saw
juvenile hit Mr. Coleman, and in light of the above presumption, we
find no prejudice. Accordingly, we affirm.
Affirmed.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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