IN THE MATTER OF:
M.B.B.
Beaufort County
No. 05 JB 85
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Kimberly D. Potter, for the State.
Jeffrey Evan Noecker, for respondent-juvenile-appellant.
JACKSON, Judge.
On 15 February 2006, Ronnie Hall (“Hall”) was dining in a
restaurant in Chocowinity, North Carolina. M.B.B. (“the juvenile”)
also was in the restaurant with two of his friends. As Hall was
eating, he noticed that a little ball of paper suddenly had dropped
onto his plate of food. When he looked up, he saw the juvenile and
the juvenile's friends seated across the restaurant, holding straws
in their hands. Hall testified he did not see who shot the ball of
paper at him, and that he was not hit by the paper.
Alan Jordan (“Jordan”), the Beaufort County Sheriff, also was
in the same restaurant as Hall and the juvenile on this date.
Although he did not see the paper ball land in Hall's food, nor didhe see the juvenile or the other boys shoot paper balls out of
their straws, he did see Hall confront the juvenile as the juvenile
passed Hall's table and was leaving the restaurant. Jordan
followed the juvenile out of the restaurant and questioned him.
Jordan testified that the juvenile admitted that he had been
shooting spitballs, but that the juvenile did not say at whom he
had been shooting the spitballs.
On 7 March 2006, a juvenile petition was filed alleging that
the juvenile had committed the offense of simple assault based upon
the incident on 15 February 2006. Following an adjudication
hearing on 7 April 2006, the trial court adjudicated the juvenile
as delinquent, and found that beyond a reasonable doubt he had
committed the offense of simple assault. Disposition in this case
was continued until a later date.
On 23 March 2006, a teacher at the juvenile's school saw the
juvenile walk up to C.P., another juvenile, and strike C.P. in the
face with his fist. Based upon this incident, a juvenile petition
alleging that the juvenile had committed a simple affray was filed
on 31 March 2006. Following an adjudication hearing held 5 May
2006, the juvenile was found delinquent, and to have committed the
offense of simple affray.
On 16 May 2006, the trial court entered a disposition order
for both offenses. The juvenile was placed on twelve months of
probation, and, among other things, was ordered to cooperate with
several treatment programs, if ordered to do so by the Court
Counselor. The juvenile appeals from the disposition order and theorder adjudicating him delinquent for the offense of simple
assault.
The juvenile first contends the trial court erred in denying
his motion to dismiss the charge of simple assault, based upon an
insufficiency of the evidence to prove all of the elements of the
offense.
“To withstand a juvenile's motion to dismiss based on an
insufficiency of the evidence, the State must present substantial
evidence of each element of the offense alleged.” In re S.R.S., __
N.C. App. __, __, 636 S.E.2d 277, 281 (2006). “'Substantial
evidence is relevant evidence which a reasonable mind might accept
as adequate to support a conclusion.'” Id. (quoting State v.
Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005)). “In
ruling upon a motion to dismiss, the trial court considers the
evidence in the light most favorable to the State, and affords the
State the benefit of every reasonable inference of fact which may
be drawn from the evidence.” Id. at __, 636 S.E.2d at 281-82.
“There is no statutory definition of assault in North
Carolina, and the crime of assault is governed by common law
rules.” State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305
(1967). Our Supreme Court has defined the common law offense of
assault as
“an overt act or attempt, or the unequivocal
appearance of an attempt, with force and
violence, to do some immediate physical injury
to the person of another, which show of force
or menace of violence must be sufficient to
put a person of reasonable firmness in fear of
immediate bodily harm.”
This common law rule places emphasis on the
intent or state of mind of the person accused.
The decisions of the Court have, in effect,
brought forth another rule known as the “show
of violence rule,” which places the emphasis
on the reasonable apprehension of the person
assailed. The “show of violence rule”
consists of a show of violence accompanied by
reasonable apprehension of immediate bodily
harm or injury on the part of the person
assailed which causes him to engage in a
course of conduct which he would not otherwise
have followed.
Id. (citations omitted).
In the instant case, the State's evidence showed that Hall
neither saw the juvenile shoot the spitball nor was he hit by the
spitball. Hall simply saw the paper ball land in his plate of
food. At no time did Hall state that he was in fear of bodily
harm. Moreover, no evidence was presented showing that the
juvenile intended to cause fear of physical injury in Hall or
anyone else in the restaurant that day. The juvenile told Jordan
that he had been shooting spitballs, but there was no evidence
showing that the juvenile caused the spitball to land in Hall's
plate, or that the juvenile intended, through force or violence, to
cause physical injury to Hall.
As such, there was insufficient evidence of each element of
simple assault, and the juvenile's motion to dismiss should have
been granted. The juvenile's adjudication of delinquency for
simple assault is thus vacated.
Finally, the juvenile contends his juvenile petition alleging
delinquency for simple affray was fatally defective, in that it
failed to set forth all essential elements of the offense charged. We decline to address the juvenile's final assignment of
error, as he has failed to comply with our Rules of Appellate
procedure, thus preventing this Court from obtaining jurisdiction
to hear this portion of his appeal. The juvenile's Notice of
Appeal and Appellate Entries form states only that he appeals from
the order in which he was adjudicated delinquent on the charge of
simple assault, and the subsequent disposition order. There is no
Notice of Appeal from the adjudication order filed 16 May 2006
adjudicating him delinquent for the charge of simple affray, nor
did the juvenile give oral notice of appeal following his
adjudication. “[W]hen a defendant has not properly given notice of
appeal, this Court is without jurisdiction to hear the appeal.”
State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320 (2005);
see also Sillery v. Sillery, 168 N.C. App. 231, 234, 606 S.E.2d
749, 751 (2005); State v. McMillian, 101 N.C. App. 425, 427, 399
S.E.2d 410, 411 (1991).
During oral arguments, counsel for the juvenile made an oral
motion seeking to have this Court treat his brief as a petition for
a writ of certiorari, thus enabling this Court to address the
merits of this issue. Rule 21 of our appellate rules provides that
“[t]he writ of certiorari may be issued in appropriate
circumstances by either appellate court to permit review of the
judgments and orders of trial tribunals when the right to prosecute
an appeal has been lost by failure to take timely action, . . . .”
N.C. R. App. P. 21(a) (2006). Rule 21 goes on to specify the
requirements for a petition seeking a writ of certiorari: The petition shall contain a statement of the
facts necessary to an understanding of the
issues presented by the application; a
statement of the reasons why the writ should
issue; and certified copies of the judgment,
order or opinion or parts of the record which
may be essential to an understanding of the
matters set forth in the petition. The
petition shall be verified by counsel or the
petitioner. Upon receipt of the prescribed
docket fee, the clerk will docket the
petition.
N.C. R. App. P. 21(c) (2006). Our granting of counsel's oral
petition or motion for writ of certiorari would constitute a clear
violation of our appellate rules. See McCoy, 171 N.C. App. at 638,
615 S.E.2d at 321 (holding that a footnote in an appellate brief
was insufficient to request writ of certiorari because it “clearly
does not meet the requirements set forth in Rule 21(c)”). As we
have noted on numerous occasions, “[t]he North Carolina Rules of
Appellate Procedure are mandatory and 'failure to follow these
rules will subject an appeal to dismissal.'” Viar v. N.C. Dep't of
Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360, reh'g denied, 359
N.C. 643, 617 S.E.2d 662 (2005).
Therefore, we must dismiss this assignment of error, as we are
without jurisdiction to hear the juvenile's appeal from his
adjudication on the charge of simple affray.
Reversed in part; Dismissed in part.
Judges HUNTER and TYSON concur.
Report per Rule 30(e).
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