IN THE MATTER OF: F.M.A., Surry County
Juvenile No. 06 J 08-B
Attorney General Roy Cooper, by Assistant Attorney General
Karen A. Blum, for the State.
Allen W. Boyer, for respondent-appellant.
MARTIN, Chief Judge.
Juvenile F.M.A. was adjudicated delinquent for making a false
bomb report, a serious offense under N.C. Gen. Stat. § 7B-2508
(2005). See N.C. Gen. Stat. § 14-69.1 (2005). Based on juvenile's
low delinquency history, the court entered a “Juvenile Level 1 and
2 Disposition Order” placing him on probation for twelve months and
ordering him, inter alia, to perform twenty-five hours of community
service, to participate for twelve months in the Surry Friends of
Youth Counseling Program, and to cooperate with placement in a
wilderness program.
In his single assignment of error on appeal, juvenile contends
“[t]he evidence provided the Court as shown in this record on
appeal was insufficient to allow a reasonable mind to conclude that
[he] was guilty of the offense with which he was charged.” Insupport of this assignment of error, juvenile shows that the court
reporter was unable to transcribe the testimony at the delinquency
hearing due to a problem with the recording device. When informed
that the tapes of the hearing were inaudible, juvenile's appellate
counsel wrote a letter to the assistant district attorney and to
juvenile's trial attorney, seeking information about the testimony
offered at the hearing. In her reply, the assistant district
attorney provided appellate counsel with a list of the three
State's witnesses: (1) Mount Airy Middle School Principal David
Welch; (2) S.O., a classmate of juvenile; and (3) Mount Airy Police
Officer W.D. Freed. According to appellate counsel, juvenile's
trial attorney did not respond. Absent either a transcript or
attorneys' notes reflecting the testimony adduced at the hearing,
juvenile avers that the limited documentary evidence found in the
record on appeal is insufficient to support an adjudication of
delinquency.
As the appellant in this cause, juvenile bears the burden of
providing this Court with a record that affirmatively shows error
by the trial court. See State v. Adams, 335 N.C. 401, 409, 439
S.E.2d 760, 764 (1994); Hicks v. Alford, 156 N.C. App. 384, 389-90,
576 S.E.2d 410, 414 (2003). “'An appellate court is not required
to, and should not, assume error by the trial judge when none
appears on the record.'” Adams, 335 N.C. at 410, 439 S.E.2d at 764
(quoting State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357
(1968)). The Juvenile Code provides that delinquency hearings “shall be
recorded by stenographic notes or by electronic or mechanical
means.” N.C. Gen. Stat. § 7B-806 (2005). We have held, however,
that mere noncompliance with this provision does not constitute
reversible error. See, e.g., In re Clark, 159 N.C. App. 75, 80,
582 S.E.2d 657, 660 (2003). “A party, in order to prevail on an
assignment of error under [N.C. Gen. Stat. §] 7B-806, must also
demonstrate that the failure to record the evidence resulted in
prejudice to that party.” Id. Moreover, “[w]here a verbatim
transcript of the proceedings is unavailable, there are 'means . .
. available for [a party] to compile a narration of the evidence,
i.e., reconstructing the testimony with the assistance of those
persons present at the hearing.'” Id. (quoting Miller v. Miller,
92 N.C. App. 351, 354, 374 S.E.2d 467, 469 (1988) (alteration in
original)). Specifically, N.C.R. App. P. 9(c)(1) provides that
“testimonial evidence required to be included in the record on
appeal . . . shall be set out in narrative form except where such
form might not fairly reflect the true sense of the evidence
received.” Only “where the appellant has done all that []he can”
to obtain a transcript or narrative summary of the hearing
testimony will noncompliance with Rule 9 be excused. Coppley v.
Coppley, 128 N.C. App. 658, 663, 496 S.E.2d 611, 616, disc. review
denied, 348 N.C. 281, 502 S.E.2d 846 (1998).
We find no merit to juvenile's claim that the lack of a
complete record on appeal precludes this Court from upholding the
adjudication of delinquency. Juvenile does not assert that thelack of a transcript prevents him from demonstrating the
insufficiency of the State's evidence of delinquency at the
hearing. Instead, he argues that the limited evidence found in the
record on appeal is insufficient to prove the allegations in the
delinquency petition. As previously noted, however, it is
juvenile's burden to assemble a complete record and to rebut the
presumption of validity accorded to trial court proceedings. As we
explained in a similar context: “ Defendant argues in his brief,
'[t]he incompleteness of the record precludes the State from
satisfying its burden of pro[of] . . . beyond a reasonable doubt.'
To the contrary, however, whatever incompleteness may exist in the
record precludes defendant from showing that error occurred
. . . .” State v. Adams, 335 N.C. 401, 410, 439 S.E.2d 760, 764
(1994).
While juvenile's appellate counsel presents documentation that
no audible recording of the hearing testimony exists, he does not
show any attempt to follow up with the assistant district attorney,
or to contact the State's three witnesses to obtain a summary of
their hearing testimony. Similarly, counsel does not purport to
have sought assistance from juvenile, juvenile's parents, or any
other persons present at the hearing to assemble a narrative of the
evidence adduced at the delinquency hearing. Counsel's act of
mailing a letter to each of the attorneys at the delinquency
hearing is insufficient to demonstrate his inability to meet his
obligation of assembling an adequate record on appeal under N.C.R.App. P. 9(a)(1)(e), (c). Accordingly, we overrule his assignment
of error.
To the extent juvenile's assignment of error can be construed
as challenging the sufficiency of the State's evidence at the
delinquency hearing, he has failed to assert or show that he made
a timely motion to dismiss the petition at the conclusion of the
State's evidence, as required to preserve this issue for appeal
under N.C.R. App. P. 10(b)(3). He thus failed to preserve this
issue for appellate review. See In re Clapp, 137 N.C. App. 14, 19,
526 S.E.2d 689, 693 (2000); In re Davis, 126 N.C. App. 64, 65-66,
483 S.E.2d 440, 441-42 (1997). We note that the record includes
the following signed confession from juvenile, witnessed by Officer
Freed at the Mount Airy Police Department on Monday, 12 December
2005, ten days after the false bomb report was made on Friday, 2
December 2005:
Friday I was not doing what I was sopost to do
so I got sent out into the hall but I wasen't
mad about that though I was trying to be cool
in front of everybody so I did the bomb
threat. Then Wednesday everybody told me that
denese wanted to kill me because she got in
truble beccause I said she help me do the bomb
threat. but I diden't know denese untill
Wednesday when we talked about it. and then I
got called into the office about the bomb
threat.
(emphasis added). In light of this written confession, it appears
the State's evidence was sufficient to withstand a motion to
dismiss and to support the adjudication of delinquency.
Affirmed.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
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