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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA07-148


Filed: 4 September 2007

IN RE: C.S.M.,

    A Minor Juvenile.            Randolph County
                            No. 03 JB 146

    Appeal by juvenile from order entered 20 October 2006 by Judge William M. Neely in Randolph County District Court. Heard in the Court of Appeals 20 August 2007.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Creecy C. Johnson, for the State.

    Don Willey, for juvenile-appellant.

    JACKSON, Judge.

    C.S.M. (“the juvenile”) appeals from an adjudication and disposition order of the district court adjudicating him a delinquent juvenile and placing him on probation for twelve months. For the following reasons, we find no error.
    The juvenile's sole argument on appeal is that he received ineffective assistance of counsel due to his counsel's failure to move to dismiss the juvenile petition for insufficient evidence at the close of the State's evidence. We need not reach the merits of the juvenile's assignment of error, however, because the record reflects that his counsel, in fact, did make a motion to dismiss at the appropriate point in the hearing. While the juvenile is correct that his counsel did not move to dismiss the juvenilepetition at the close of State's evidence, the juvenile's counsel did so move at the close of all evidence as required by the Rules of Appellate Procedure. See N.C. R. App. P. 10(b)(3) (2006) (“A defendant may make a motion to dismiss the action or judgment as in case of nonsuit at the conclusion of all the evidence, irrespective of whether he made an earlier such motion.”). After the juvenile presented his final witness, the trial court asked if the juvenile's counsel wished to be heard. Along with her argument, the juvenile's counsel specifically stated, “We would ask that the State dismiss or that you dismiss the petitions in this matter.”
    Because the record reflects that the juvenile's counsel made the necessary motion to preserve the juvenile's right to appellate review of the sufficiency of the evidence, the juvenile's claim of ineffective assistance of counsel is without merit and, therefore, is overruled.
    No Error.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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