IN RE: C.S.M.,
A Minor Juvenile. Randolph County
No. 03 JB 146
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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