IN THE MATTER OF:
S.T.O. (Juvenile)
Wake County
No. 06-J-63
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
Brannon Strickland, PLLC, by Anthony M. Brannon for defendant-
appellant.
STEELMAN, Judge.
When a juvenile introduces evidence following the denial of
his motion to dismiss, this motion must be renewed at the close of
all the evidence. Upon the failure to renew the motion, this
appeal must be dismissed.
Petitioner's evidence tends to show that between 5:30 and 6:00
p.m. on 19 October 2005, Angela McCarty heard loud popping sounds
coming from the area of a private pond. She investigated and saw
a duck swimming in circles in the pond. She heard another popping
sound. She looked and saw two boys standing in a clearing holding
a BB rifle. She identified one of the boys as Juvenile, whom she
had seen many times visiting a boy who lived next to her guest
house. She saw Juvenile holding the BB rifle and aiming at one ofthe ducks. She screamed at the boys to stop. The boys ran. She
caught up with one of the boys, who identified Juvenile as the
other boy and directed her to the mobile home where Juvenile lived.
She knocked on the door and received no answer. She saw a white
vehicle leaving the area. She returned to the pond and retrieved
a duck that had been shot. This duck died before she could rush it
to a veterinarian. A second duck sustained a wound to an eye and
is blind in that eye.
Juvenile's mother testified that Juvenile came home from
school at 3:30 p.m. that afternoon and went to his neighbor's house
to help the neighbor pack boxes preparatory to moving. Juvenile
returned home, changed his clothes, and went with his mother to the
state fair that evening. They left their residence in a white
vehicle at 5:45 p.m. She took a BB gun away from Juvenile as a
disciplinary measure so that at the time of this incident, Juvenile
did not possess any gun of any kind.
Maria Skipper testified that on 19 October 2005, she was
Juvenile's neighbor. Juvenile came to her residence after school
that date and helped her take down a bunk bed and pack boxes.
Juvenile left her residence at 5:20 p.m. after his mother told him
to return home and change his clothes before going to the fair.
Juvenile testified and denied shooting the ducks.
On rebuttal, another neighbor testified that she had seen
Juvenile carrying a BB gun.
In his only assignment of error, Juvenile contends that the
trial court erred in denying his motion to dismiss based upon thesufficiency of the evidence showing he was the perpetrator of the
offense.
This Court has stated that a juvenile “is entitled to have
the evidence evaluated by the same standards as apply in criminal
proceedings against adults.” In re Dulaney, 74 N.C. App. 587, 588,
328 S.E.2d 904, 906 (1985). Thus, a motion to dismiss is the
recognized method by which the sufficiency of the evidence to
sustain a petition alleging delinquency is evaluated. In re J.A.,
103 N.C. App. 720, 723-24, 407 S.E.2d 873, 875 (1991). “In
considering a juvenile's motion to dismiss, the trial court must
determine whether there is substantial evidence of each essential
element of the charged offense and whether the juvenile was the
perpetrator of the offense.” In re Rhyne, 154 N.C. App. 477, 481,
571 S.E.2d 879, 881 (2002), disc. review denied, 356 N.C. 672, 577
S.E.2d 637 (2003).
Substantial evidence is defined as what “a
reasonable mind might accept as adequate to support a conclusion.”
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
Substantial evidence of guilt is required
before the court can send the case to the
jury. Proof of guilt beyond a reasonable doubt
is required before the jury can convict. What
is substantial evidence is a question of law
for the court. What that evidence proves or
fails to prove is a question of fact for the
jury.
State v. Stephens, 244 N.C. 380, 384, 93 S.E.2d 431, 433-34 (1956).
In a juvenile proceeding, there is no jury and the trial judge is
the trier of the facts who determines the weight and credibility to
be given to the evidence presented. In re Whichard, 8 N.C. App.
154, 160, 174 S.E. 2d 281, 285, cert. denied, 403 U.S. 940, 29 L.Ed. 2d 719 (1971).
To preserve a right to appellate review of the sufficiency of
the evidence, a juvenile who presents evidence after making a
motion to dismiss must also make a motion to dismiss at the close
of all the evidence. In re Davis, 126 N.C. App. 64, 66, 483
S.E.2d 440, 442 (1997). The State argues Juvenile failed to renew
the motion to dismiss at the close of all the evidence. Thus, the
threshold determination we must make is whether Juvenile made a
motion to dismiss at the close of all the evidence.
The record shows that Juvenile presented evidence after the
court denied Juvenile's motion to dismiss at the close of
petitioner's evidence. After petitioner presented rebuttal
evidence and announced it had finished with its presentation of
evidence, the court inquired, “All right, care to be heard.” The
prosecutor responded, “State waive opening.” The court then
inquired of Juvenile's counsel, “Care to be heard, Ms. Mulligan?”
At that point counsel made argument to the court in which she
reviewed the evidence and argued petitioner “has not proven its
case beyond a reasonable doubt and there is reasonable doubt[.]”
We note the record does not show that counsel moved to dismiss
the petition on the ground substantial evidence is lacking. What
the record shows is that counsel made a closing argument to the
court, asking it as the fact finder not to make a finding that
petitioner committed the offense because his perpetration of the
offense had not been proven beyond a reasonable doubt. We
therefore conclude Juvenile did not make a motion to dismiss at theclose of all the evidence and did not preserve the issue of the
sufficiency of the evidence for our review. We accordingly dismiss
this assignment of error. There are no other assignments of error.
We dismiss the appeal.
APPEAL DISMISSED.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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