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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 April 2007
IN THE MATTER OF: Mecklenburg County
V.E.B., No. 05 J 1047
Appeal by respondent from juvenile adjudication and
disposition orders entered 14 February 2006 by Judge Hugh B. Lewis
in Mecklenburg County District Court. Heard in the Court of
Appeals 7 March 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Lisa C. Glover, for the petitioner-appellee.
Jon W. Myers, for respondent-appellant V.E.B.
Respondent appeals from an adjudication of delinquency and the
associated order of disposition. We affirm.
In October 2005 the State filed petitions alleging that
respondent had committed the offenses of communicating a threat, in
violation of N.C. Gen. Stat. § 14-277.1, and resisting a law
enforcement officer, in violation of N.C. Gen. Stat. § 14-223. At
a hearing conducted 14 February 2006 the State presented evidence
tending to show the following:
On 10 July 2005 Christina Britland saw a young man with a
handgun in the parking lot of an apartment complex. She called
911, and a few minutes later Officers Miller and French of the
Pineville Police Department arrived. Britland pointed out the boywith the gun and then left the scene. Officer French got out of
the patrol car, approached the young man, and asked to speak with
him. The youth refused and ran off through the apartment buildings
with his hands concealed near his waist.
A few seconds later, the young man ran into an apartment which
was later determined to be his home. Present in the apartment were
his mother and the respondent, who is his sister. Officer French
followed the young man inside, drew his service weapon and said
Police, get on the ground. Instead of dropping to the ground,
the young man remained standing. At the same time, respondent ran
over to Officer French, grabbed his upper arm with both hands, and
yelled Get the f[---] out of my apartment. As Officer French
pushed respondent away, the young man approached the officer, his
hands still concealed in his waistband. Officer French sprayed
both young people with pepper spray, just as Officer Miller and a
third law enforcement officer, Officer Dalux, arrived at the
Officers Miller and French subdued and hand-cuffed the male
suspect while Officer Dalux took control of respondent. As Officer
Dalux was leading respondent out of the apartment, she shouted,
I'm going to kick your f[_]ing a[_]. Officer French testified at
the hearing that he believed that given the opportunity she
probably would have attacked me again had there not been other
Respondent presented evidence tending to show that she had not
touched, grabbed, or threatened Officer French. The trial court adjudicated respondent delinquent and placed
her on juvenile court supervision. Respondent appeals from the
adjudication and disposition.
Respondent first argues that the trial court committed
reversible error by conducting the dispositional hearing without
having a predisposition report or a risks and needs assessment, and
without making findings of fact that these reports were not
Respondent asserts that the trial court violated N.C. Gen.
Stat. § 7B-2413 (2005), which provides in pertinent part:
The court shall proceed to the dispositional
hearing upon receipt of the predisposition
report. A risk and needs assessment,
containing information regarding the
juvenile . . . shall be conducted for the
juvenile and shall be attached to the
predisposition report. . . . [If] no
predisposition report is available and the
court makes a written finding that a report is
not needed, the court may proceed with the
dispositional hearing. . . .
After adjudication, the trial court asked respondent whether
she wished to proceed immediately to disposition or continue the
case so that an assessment of respondent could be conducted.
Counsel for respondent stated, my client and her family have
indicated that they'd like to go ahead and do this today so they
don't have to come back to court. Respondent thus agreed to
conduct the dispositional hearing without the statutorily required
reports. In order to preserve a question for appellate review, a party
must have presented to the trial court a timely request, objection
or motion, stating the specific grounds for the ruling the party
desired the court to make[.] N.C.R. App. P. 10(b)(1).
Accordingly, [a]s a general rule, defendant's failure to object to
alleged errors by the trial court operates to preclude raising the
error on appeal. State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652,
659 (1985) (citations omitted). However, statutory violations,
regardless of objections at the trial court, are reviewable. 'When
a trial court acts contrary to a statutory mandate, the right to
appeal the court's action is preserved, notwithstanding the failure
of the appealing party to object at trial.' State v. Golphin, 352
N.C. 364, 411, 533 S.E.2d 168, 202 (2000) (quoting State v. Jones,
336 N.C. 490, 497, 445 S.E.2d 23, 26 (1994)).
Not every statutory violation is grounds for reversal. Under
N.C. Gen. Stat. § 15A-1443 (2005), respondent is prejudiced by non-
Constitutional errors when there is a reasonable possibility that,
had the error in question not been committed, a different result
would have been reached at the trial out of which the appeal
arises. The burden of showing such prejudice under this subsection
is upon the [respondent]. In the instant case, respondent fails
to articulate any specific prejudice from the trial court's
conducting the disposition hearing without the benefit of a
predisposition report or a risk and needs assessment.
Consequently, we conclude the error was harmless. This assignment
of error is overruled.
Respondent next argues that the trial court committed
reversible error by failing to consider her history, welfare, or
needs in determining an appropriate dispositional alternative.
On appeal, we will not disturb a trial court's ruling
regarding a juvenile's disposition absent an abuse of discretion,
which occurs 'when the trial court's ruling is so arbitrary that it
could not have been the result of a reasoned decision.' In re
J.B., 172 N.C. App. 747, 751, 616 S.E.2d 385, 387 (quoting In re
Robinson, 151 N.C. App. 733, 737-38, 567 S.E.2d 227, 229 (2002)),
aff'd, 360 N.C. 165, 622 S.E.2d 495 (2005).
Respondent concedes that the trial court's order requiring her
placement in a wilderness camp was within the permissible statutory
range of dispositional alternatives. She contends, however, that
the trial court violated the dictates of N.C. Gen. Stat. § 7B-
2501(c) (2005), which provides in pertinent part:
(c) In choosing among statutorily permissible
dispositions, the court shall select the most
appropriate disposition . . . based upon:
(1) The seriousness of the offense;
(2) The need to hold the juvenile accountable;
(3) The importance of protecting the public
(4) The degree of culpability indicated by the
circumstances of the particular case; and
(5) The rehabilitative and treatment needs of
the juvenile indicated by a risk and needs
Respondent argues that the trial court failed to consider the
enumerated factors, and that the trial court's determination that
participation in a wilderness camp was an inappropriate disposition
that was not fashioned to her situation. However, respondentfails to set forth any aspects of a wilderness camp that are
inappropriate to her situation. Nor does she articulate which of
her traits, needs, or other personal circumstances might be
incompatible with attendance at a wilderness camp.
Respondent further contends that the court's dispositional
order does not contain appropriate findings of fact and
conclusions of law as required by N.C. Gen. Stat. § 7B-2512
(2005). Again, respondent does not suggest any findings of fact
that should have been made, or what prejudice was caused by the
trial court's failure to make them.
Respondent essentially argues that, because the trial court
did not have a predisposition report or a risk and needs
assessment, it was unable to properly consider the statutory
factors or to draft an order with appropriate findings and
conclusions. As discussed above, it was at respondent's request
that the dispositional hearing was conducted immediately after the
adjudication, and respondent fails to demonstrate prejudice. This
assignment of error is overruled.
Finally, respondent argues that the trial court erred by
denying her motion to dismiss the petition alleging that she had
communicated a threat, in violation of N.C. Gen. Stat. § 14-277.1
In ruling on a motion to dismiss for insufficient evidence,
the trial court must determine 'whether there is substantial
evidence (1) of each essential element of the offense charged, . .. and (2) of defendant's being the perpetrator of such offense.'
Substantial evidence is such relevant evidence as is necessary to
persuade a rational [fact-finder] to accept a conclusion. The
trial court must review the evidence in the light most favorable to
the State, giving the State the benefit of every reasonable
inference to be drawn therefrom. State v. Squires
, 357 N.C. 529,
535, 591 S.E.2d 837, 841 (2003) (quoting State v. Powell
, 299 N.C.
95, 98, 261 S.E.2d 114, 117 (1980)) (citations omitted).
The elements of communicating a threat are that the defendant
threatened a person, that the defendant communicated the threat to
that person, that the defendant made the threat in such a manner
and under such circumstances that a reasonable person would believe
the threat was likely to be carried out, and that the person
threatened believed that the threat was likely to be carried out.
N.C.G.S. § 14-277.1 [(2005)]. State v. Cunningham
, 344 N.C. 341,
360-61, 474 S.E.2d 772, 781 (1996) (citations omitted).
Officer French testified that respondent told him, I'm going
to kick your f[_]ing a[_]. Respondent concedes that this language
constitutes a threat to Officer French. However, she challenges
the sufficiency of the evidence that the threat was made under
circumstances in which a reasonable person would believe it would
be carried out, or that Officer French believed it was likely to be
There was evidence from which the trial court could find that
respondent: (1) heard Officer French identify himself as a law
enforcement officer, and order her brother to get down on theground; (2) saw that Officer French was armed; (3) physically
attacked him by using both her hands to grab the arm in which
Officer French held a firearm; (4) had to be physically restrained
by her mother to prevent her from attempting further interaction
with Officer French; (5) was pepper-sprayed by Officer French; and
(6) notwithstanding the pepper-spray and the presence of other
officers, threatened to assault Officer French. Officer French
testified that he believed respondent would have attempted to carry
out her threat immediately but for the presence of other law
enforcement officers. We conclude that this is sufficient evidence
to withstand respondent's motion to dismiss.
For the reasons discussed above, we conclude that the trial
court's orders of adjudication and disposition should be
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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