Cousin, Matter of
| Decision Date | 21 March 1989 |
| Docket Number | No. 8815DC978,8815DC978 |
| Court | North Carolina Court of Appeals |
| Parties | In the Matter of Isaac Antonio COUSIN. |
Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Martha K. Walston, Raleigh, for the State.
Jacobs & Livesay by Robert J. Jacobs, Graham, for respondent-appellant.
On 11 April 1988, respondent, born 21 May 1972, was adjudicated delinquent for breaking or entering, in violation of N.C.Gen.Stat. 14-54(a) (1986), and larceny, in violation of N.C.Gen.Stat. 14-72(b)(2) (1986). On 9 May 1988, the trial court conducted a dispositional hearing and ordered the commitment of defendant into the custody of the Division of Youth Services for an indefinite period. From adjudication and disposition orders, respondent appealed.
Respondent first contends that the evidence was insufficient to sustain an adjudication of delinquency based on his commission of breaking or entering and larceny. We disagree. The respondent in a juvenile delinquent proceeding is entitled to have the evidence evaluated by the same standards as apply to adult criminal proceedings; N.C.Gen.Stat. 7A-634(a) (1986). In re Walker, 83 N.C.App. 46, 348 S.E.2d 823 (1986). The standard of proof is whether there is substantial evidence of each element of the offense and that respondent was the perpetrator. Id. Substantial evidence is that which a reasonable mind might accept as adequate. State v. Greer, 308 N.C. 515, 302 S.E.2d 774 (1983). In addition, the evidence must be considered in the light most favorable to the State. Id.
The elements of felonious breaking or entering in violation of N.C.Gen.Stat. 14-54 (1986) are: (1) breaking or entering, (2) of any building, (3) with the intent to commit any felony or larceny therein. State v. Litchford, 78 N.C.App. 722, 338 S.E.2d 575 (1986). Where a defendant offers no explanation for breaking into the building or a showing of the owner's consent, intent may be inferred from the circumstances. State v. Myrick, 306 N.C. 110, 291 S.E.2d 577 (1982). In addition, the intent with which a defendant entered or broke and entered a dwelling may be inferred from what he did within the building. State v. Bronson, 10 N.C.App. 638, 179 S.E.2d 823 (1971). The elements of larceny in violation of N.C.Gen.Stat. 14-72(b) (1986) are that the defendant: (1) took the property of another, (2) carried it away, (3) without the owner's consent, and (4) with the intent to deprive the owner of the property permanently. State v. Reeves, 62 N.C.App. 219, 302 S.E.2d 658 (1983).
In the present case, the State's evidence tended to show that on 3 February 1988, Tony Griffis, Nathaniel Herbin, Maurice Leath, and respondent were together and went to an apartment occupied by Karen Bryson Hawkins which was located at 1406 Stout Street. Mr. Griffis testified that he did not have permission to enter the apartment. He further testified that Maurice Leath used a knife to open a window to the apartment and then entered. The young men entered the apartment and "started searching around." Mr. Griffis further testified that he grabbed a television set and that Maurice Leath started throwing eggs. Mr. Griffis also testified that Maurice Leath and respondent removed five watches and a digital clock from the apartment and took them to Maurice's house.
The State also presented the testimony of Lisa Morrow, Ms. Hawkins' next door neighbor. She testified that she called the police on 4 February 1988 because she had heard the house had been broken into and went into the apartment and observed eggs thrown on the wall, the contents of Ms. Hawkins' pocketbook piled on the kitchen floor, and her kitchen cabinets opened. Ms. Morrow further testified that the back door was open and that the screen was out.
We find the foregoing evidence, considered in the light most favorable to the State, sufficient to establish the elements of breaking or entering and larceny and that the respondent was the perpetrator. Respondent argues that the evidence is insufficient to adjudicate him delinquent for breaking or entering and larceny because the only evidence placing him at 1406 Stout Street is the testimony of Tony Griffis. However, this Court has held that the unsupported testimony of an accomplice is sufficient to support a conviction if it satisfies the jury beyond a reasonable doubt of the guilt of the defendant. State v. Bailey, 18 N.C.App. 313, 196 S.E.2d 556, cert. denied, 283 N.C. 754, 198 S.E.2d 724 (1973), cert. denied, 415 U.S. 976, 94 S.Ct. 1561, 39 L.Ed.2d 871 (1974). This assignment of error is overruled.
Next, respondent contends that the trial court erred in concluding that the confinement of respondent was appropriate where less restrictive alternatives to commitment were available. Pursuant to N.C.Gen.Stat. 7A-646 (1986), the trial judge has the duty to choose the least restrictive alternative in selecting a disposition, taking into consideration the seriousness of the offense, age, prior record, degree of culpability, and the circumstances of the case. The trial judge must also consider the best interest of the State. In re Bullabough, 89 N.C.App. 171, 365 S.E.2d 642 (1988). Prior to committing a juvenile to the Division of Youth Services, the trial judge must first find that the alternatives to commitment contained in N.C.Gen.Stat. 7A-649 (1986) are inappropriate or that they have been unsuccessfully attempted and that the juvenile's behavior is a threat to the community. Id. In addition, these findings must be supported by detailed findings which are in turn supported by some evidence in the record of the dispositional hearing. In re Khork, 71 N.C.App. 151, 321 S.E.2d 487 (1984).
In the present case, the trial court made the following findings:
(2) The respondent was first before the court on July 12, 1984 for shoplifting of some candy and was placed on juvenile probation which he violated by failing to attend school on a regular basis.
(3) His probation was extended on February 11, 1985 for an additional six months.
(4) On May 10, 1985, his probation was extended for an...
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