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The transcript reveals that the trial began on Tuesday, 23 July

By Yolanda Wright,2014-04-20 19:38
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The transcript reveals that the trial began on Tuesday, 23 July

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    No. 06-47 DISTRICT 19B

    NORTH CAROLINA COURT OF APPEALS

    *********************************************

IN THE MATTER OF: )

     )

     S.R.S. ) From Randolph County

     ) 04 J 65

    )

     )

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    JUVENILE/APPELLANT’S BRIEF

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    QUESTIONS PRESENTED

     I. Is the juvenile petition as to Communicating Threats fatally

     defective and therefore the judgment of the trial court must be vacated?

     II. Did the trial court erred in denying the juvenile‟s motion to dismiss

     at the close of all evidence, due to insufficiency of the evidence to prove

     guilt beyond a reasonable doubt and in violation of N.C. Gen. Stat. ? 7B-

     2409?

    III. Did the trial court err in ordering the juvenile to dispositional

    probation terms 1(b), (f), (m), and (p), in that they violate N.C. Gen. Stat.

    ?? 7B-2506 and -2510?

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    STATEMENT OF THE CASE

    Juvenile was tried for the charge of communicating threats at the 21 April 2005 juvenile session of District Court for Randolph County, the Honorable Scott C. Etheridge, Judge Presiding, whereupon the court adjudicated juvenile a delinquent. Juvenile had previously admitted to the charge of Assault on a Government Employee pursuant to an Alford Plea (Rp. 5-6) at the 21 March 2005 juvenile session of District Court for Randolph County, the Honorable V. Bradford Long, Judge presiding, whereupon the juvenile was adjudicated delinquent (Rp. 7-9). A disposition hearing was held 19 September 2005 and the adjudication order for Communicating Threats and disposition order for Assault on a Government Official and Communicating Threats was entered 23 September 2005. The court ordered a level 2 disposition, and placed the juvenile on probation for twelve (12) months. Juvenile gave timely notice of appeal.

    GROUNDS FOR APPELLATE REVIEW

    Juvenile appeals his adjudication and disposition pursuant to N.C. Gen Stat. ? 7B-2602 (2003).

    STATEMENT OF THE FACTS

    At the adjudication hearing on 19 September 2005 for the charge of Communicating Threats, the evidence at trial showed that S.R.S. was a ten year

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    old student at the time in question (Rp. 3). Cynthia Walker, a teacher at Hopewell Elementary, testified she was walking down the hallway of the school on 21 April 2005, when she heard a “commotion” (Tp. 7). Walker testified she looked over to the left, and the juvenile, S.R.S., came to the doorway of his classroom and said “I‟m going to kill your f***ing daughter” and “I‟m going to bring a gun to school tomorrow and kill your f***ing daughter (Tpp. 7-8). Afterwards, Walker went to the school office and reported the incident. Walker testified that S.R.S. and her daughter, Taylor, had previously been in a third grade class together (Tp. 12). Walker‟s daughter and S.R.S. had been friends (Tp. 12). Walker testified that the year before, S.R.S. had threatened her daughter after the daughter “told” on him for being in the hallway, and other students in the classroom (Tp. 10), but there was no evidence that S.R.S. had acted on any threat.

    Officer Brian Keith Faircloth testified that after discussing the matter in the school office with Walker, her husband, and daughter, he filed the juvenile petition in this case “based on what Ms. Walker had stated that [S.R.S.] had said to her” (Tpp. 15-16).

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    ARGUMENT

    I. The juvenile petition as to communicating threats is fatally defective and

     therefore the judgment of the trial court must be vacated.

     Assignment of Error 1, Rp. 32

Standard of Review

     Juvenile petitions are generally held to the standards of a criminal indictment, and the appellate court, in its review, must consider the requirements of the indictment of the offense at issue in a juvenile delinquency proceeding. In re Griffin, 162 N.C. App. 487, 493, 592 S.E.2d 12, 16 (2004). When a juvenile petition is fatally deficient, it is inoperative and fails to evoke the jurisdiction of the court. In re J.F.M., 168 N.C. App. 143, __, 607 S.E.2d 304,

    309, disc. review denied, 359 N.C. 411, 612 S.E.2d 321 (2005); In re Green, 67

    N.C. App. 501, 504, 313 S.E.2d 193, 195 (1984). “North Carolina law has long provided that „[t]here can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation. In the absence of an accusation the court [acquires] no jurisdiction [whatsoever], and if it assumes jurisdiction a trial and conviction are a nullity.‟” State v. Neville, 108 N.C. App. 330, 332, 423

    S.E.2d 496, 497 (1992) (quoting McClure v. State, 267 N.C. 212, 215, 148

    S.E.2d 15, 17-18 (1966)).

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    Argument

     To be valid under our General Statutes, an indictment must contain “[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant‟s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.” N.C. Gen. Stat. ? 15A-924(a)(5). A valid bill of indictment must

    allege all essential elements of a statutory offense. State v. Crabtree, 286 N.C.

    541, 544, 212 S.E.2d 103, 105 (1975). As defined by N.C. Gen. Stat. ? 14-277.1, the elements of the crime of communicating threats are as follows:

     (1) [The defendant] willfully threatens to physically injure the person or

     that person's child, sibling, spouse, or dependent or willfully threatens to

     damage the property of another . . .;

     (2) The threat is communicated to the other person, orally, in writing, or

     by any other means;

     (3) The threat is made in a manner and under circumstances which would

     cause a reasonable person to believe that the threat is likely to be carried

     out; and

     (4) The person threatened believes that the threat will be carried out.

State v. Love, 156 N.C. App. 309, 316, 576 S.E.2d 709, 713 (2003).

     The petition in the present case is deficient because it does not adequately allege all the elements of the crime in question. As to the first element, the petition states that the juvenile did “unlawfully and willfully threaten to

    physically injure the person and damage the property of Cindy Walker” (Rp.

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    3)(emphasis added). The petition then states that a threat communicated was “by orally stating to the victim several times “I‟m going to bring a gun to school

    and kill your f***ing daughter” (Rp. 3). The threat communicated does not fit the first element alleged in the indictment. While the petition puts the juvenile on notice that he is charged with communicating threats to injure the person or damage the property of Ms. Walker, the indictment does not charge him with communicating either. It goes on to state that juvenile communicated a threat regarding the victim‟s daughter. The petition is confusing as it mentions three offenses, but fails to satisfy all the elements for each; therefore, it fails to specifically allege all elements of one single offense and is defective.

     The elements charged in an indictment need to be alleged to the extent that they: (1) identify the offense; (2) protect against double jeopardy; (3) enable the defendant to prepare for trial; and (4) support a judgment on conviction. State v. Thomas, 153 N.C. App. 326, 335, 570 S.E.2d 142, 147-8

    (2002)(citing State v. Baynard, 79 N.C. App. 559, 562, 339 S.E.2d 810, 812

    (1986)). “We have repeatedly held that all that is required in an indictment. . . . . is that it be sufficient in form to express the charge against the defendant in a plain, intelligible, and explicit manner, and to contain sufficient matter to enable the court to proceed to judgment and thus bar another prosecution for the same offense.” State v. Pinyatello, 272 N.C. 312, 158 S.E.2d 596 (1968). The petition

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    in the present case does not clearly apprise the juvenile of the conduct which is the subject of the accusation, does not protect against double jeopardy, and does not allow the juvenile to prepare for trial. The petition indicates the threat was to physically injure the person of Ms. Walker and damage the property of Ms. Walker. However, in alleging the second element, the actual threat communicated, the petition alleges that the juvenile did not communicate any threat it has charged --- neither physical injury nor property damage to Ms. Walker. Because the first two elements as charged in the indictment do not match, the indictment is insufficient to charge the juvenile with communicating threats. The petition is confusing as to what is actually being charged, and therefore it could not have allowed the juvenile to sufficiently prepare for his trial as required by law. It does not protect against double jeopardy, as another petition could be brought exactly like this one, and the court would be unable to discern if another offense was being charged, or if it was the same offense in a separate indictment.

     If the indictment is not valid, the court lacks jurisdiction. “When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority.” State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981).

    Because the juvenile petition was defective in the present case, the trial court

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    lacked jurisdiction to adjudicate the juvenile delinquent and enter a disposition. Therefore, the adjudication and disposition for Communicating Threats should be vacated by this court.

    II. The trial court erred in denying the juvenile‟s motion to dismiss at the

     close of all evidence, due to insufficiency of the evidence to prove guilt

     beyond a reasonable doubt and in violation of N.C. Gen. Stat. ? 7B-

     2409.

     Assignment of Error 3, Rp. 32

Standard of Review

    “The allegations of a petition alleging the juvenile is delinquent shall be proved beyond a reasonable doubt.” N.C. Gen. Stat. ? 7B-2409. Juveniles are entitled

    to have evidence evaluated by same standard as apply in criminal proceedings for adults. In the Matter of Davis, 126 N.C. App. 64, 483 S.E.2d 440 (1997).

    Upon a defendant‟s motion to dismiss, the question before the court is whether there is substantial evidence of (1) each essential element of the offense charges, and (2) of defendant‟s being the perpetrator of such offense. State v. Powell,

    299 N.C. 95, 261 S.E.2d 114 (1980). If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the defendant‟s motion to dismiss must be

    allowed. Id.

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    Argument

     In order to prove the offense of communicating threats, the State must present evidence of four essential elements:

     (1) [The defendant] willfully threatens to physically injure the person or

     that person's child, sibling, spouse, or dependent or willfully threatens to

     damage the property of another . . .;

     (2) The threat is communicated to the other person, orally, in writing, or

     by any other means;

     (3) The threat is made in a manner and under circumstances which would

     cause a reasonable person to believe that the threat is likely to be carried

     out; and

     (4) The person threatened believes that the threat will be carried out.

State v. Love, 156 N.C. App. 309, 316, 576 S.E.2d 709, 713 (2003).

     The State failed to show all elements alleged in the petition in this case. First, the indictment alleges that the juvenile threatened to physically injure and/or damage the property of the complainant, Cindy Walker. There was not a shred of evidence of either. While the evidence showed that the juvenile communicated a threat of injuring the daughter of Ms. Walker, there was no evidence that is was made in a manner or circumstances which would cause a reasonable person to believe that the threat is likely to be carried out. There was no showing that the juvenile had any violent temper or had ever injured anyone before. Ms. Walker‟s testimony that the 10 year old juvenile had previously threatened her daughter and other classmates, but that he had done neither,

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    showed that the juvenile had a history of making threats that were never acted on.

     Finally, there was no evidence whatsoever of the fourth element of the charge, that the complainant believed that the threat would be carried out. While Ms. Walker testified that she took the threat “seriously” and it was “scary” (Tp. 8), she never testified that she believed that the threat would be

    carried out.

     Evidence is not substantial if it arouses only a suspicion about the fact to be proved, even if the suspicion is strong. State v. Malloy, 309 N.C. 176, 305

    S.E.2d 718 (1983). Based on the foregoing, it is obvious that there was not substantial evidence that it was likely the threat would be carried out, or most importantly, that the complainant believed the threat would be carried out. The evidence did show evidence of a history of problems between the complainant‟s daughter and the juvenile, but also showed that complainant had encouraged friendly relationship between them. While Ms. Walker thought the matter was “serious,” there was no evidence she believed that the juvenile would actually kill or injure her daughter.

    Due to lack of substantial evidence of all the elements of the charge in this case, guilt was not shown beyond a reasonable doubt, and the trial court erred in

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