In re I.W.P.

• Citation: 815 S.E.2d 696
• Decision Date: 01 May 2018
• Docket Number: No. COA 17-94,COA 17-94
• Parties: In the MATTER OF: I.W.P.
• Court: Court of Appeal of North Carolina (US)

815 S.E.2d 696

In the MATTER OF: I.W.P.

No. COA 17-94

Court of Appeals of North Carolina.

Filed: May 1, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Janelle E. Varley, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Zimmer, for the defendant-appellant juvenile.

BERGER, Judge.

Juvenile-defendant, I.W.P. ("Roy"),¹ appeals from the trial court’s order adjudicating him delinquent. Roy contends the trial court erred by (1) denying his motion to dismiss; (2) failing to make proper findings of fact in the adjudication order; (3) failing to make proper findings of fact in the dispositional order; (4) violating N.C. Gen. Stat. § 7B-2501(c) ; and (5) ordering the chief court counselor to direct him to complete community service. We dismiss in part, affirm in part, and remand in part.

Factual and Procedural Background

On June 8, 2016, a group of students at East Alexander Middle School decided to pull a fire alarm on the last day of school. Roy encouraged W.S. ("Wilson") several times to pull the fire alarm, which Wilson eventually did that afternoon. After the alarm sounded, Roy, Wilson, and other students ran away. According to the School Resource Officer, activation of the fire alarm resulted in "total chaos," causing children to be pushed and stepped on while attempting to exit the building. The officer swore out juvenile petitions against Roy and Wilson for disorderly conduct.

On August 10, 2016, an adjudication hearing was held in Alexander County District Court. Wilson testified that Roy and another student asked him four different times during at least two classes to pull the fire alarm. Around noon, Wilson pulled the fire alarm.

At the close of State’s evidence, Roy made a motion to dismiss the charge based upon insufficiency of the evidence. The trial court denied his motion to dismiss. Roy decided to put on evidence and testified in his own defense, denying that he encouraged or forced Wilson to pull the fire alarm. Roy did not renew his motion to dismiss at the close of all of the evidence.

Roy, who was already on juvenile probation, was adjudicated delinquent by the trial court. At disposition, the trial court continued Roy’s prior probationary period, and entered a new dispositional order directing him to complete counseling; follow the counselor’s recommendations; comply with a curfew set by his parents or counselor; not associate with anyone or be in any place deemed inappropriate by his parents or counselor; not violate any laws or rules at home; attend school on a regular basis; not possess any controlled substances, alcoholic beverages, or weapons; submit to random drug testing; and perform fifty hours of community service. The trial court also ordered a new probationary period for twelve months from August 10, 2016. The trial court also entered a specific dispositional provision that Roy not associate, assault, harass, or threaten Wilson because of a threat Roy had made. Roy entered notice of appeal in open court.

Analysis

I. Adjudication

Roy contends the trial court erred at the adjudication hearing by failing to grant his motion to dismiss at the close of the State’s case-in-chief, and by failing to make sufficient findings of fact to prove he committed disorderly conduct. We affirm.

A. Sufficiency of the Evidence

When denying a motion to dismiss for insufficient evidence, the "court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) of the juvenile[ ] being the perpetrator of such offense." In re K.C. , 226 N.C. App. 452, 456, 742 S.E.2d 239, 242 (2013) (citation, quotation marks, brackets, and ellipses omitted). " ‘The evidence must be such that, when it is viewed in the light most favorable to the State, it is sufficient to raise more than a suspicion or possibility of the respondent’s guilt.’ " Id. (quoting In re Walker , 83 N.C. App. 46, 48, 348 S.E.2d 823, 824 (1986) ). "If the evidence raises merely suspicion or conjecture as to either the commission of the offense or the identity of the juvenile as the perpetrator of it, the motion should be allowed." In re R.D.L. , 191 N.C. App. 526, 530-31, 664 S.E.2d 71, 73-74 (2008) (citation, internal quotation marks, and brackets omitted).

A defendant must properly preserve issues at trial to permit appellate review. For this court to review purported errors from a trial court’s denial of a motion to dismiss for insufficiency of the evidence in criminal cases, a motion to dismiss must be made either at the close of the State’s case, or at the close of all of the evidence. N.C.R. App. P. 10(a)(3) (2017).

If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, defendant's motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.

A defendant may make a motion to dismiss the action, or for judgment as in case of nonsuit, at the conclusion of all the evidence, irrespective of whether defendant made an earlier such motion. If the motion at the close of all the evidence is denied, the defendant may urge as ground for appeal the denial of the motion made at the conclusion of all the evidence. However, if a defendant fails to move to dismiss the action, or for judgment as in case of nonsuit, at the close of all the evidence, defendant may not challenge on appeal the sufficiency of the evidence to prove the crime charged.

Id. After putting on evidence, a "defendant may preserve [his] argument for appeal only by renewing the motion at the close of all evidence." In re Hodge , 153 N.C. App. 102, 107, 568 S.E.2d 878, 881, appeal dismissed and disc. review denied , 356 N.C. 613, 574 S.E.2d 681 (2002).

Here, the trial court denied Roy’s motion to dismiss at the close of the State’s evidence, finding the State had presented sufficient evidence of disorderly conduct based on the testimony of the School Resource Officer and another student. Roy then presented evidence, but failed to renew his motion to dismiss at the close of all evidence. Thus, Roy failed to preserve this issue for appeal. See N.C.R. App. P. 10(a)(3). Roy concedes that his trial counsel did not renew the motion to dismiss at the close of all the evidence, and he has waived appellate review of this assignment of error.

Roy does, however, request this Court to suspend appellate rules and review his argument pursuant to Rule 2. This Court can hear issues not properly preserved pursuant to Rule 2 in order "[t]o prevent manifest injustice to a party ... upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions." N.C.R. App. P. 2 (2017). "The Supreme Court and this Court have regularly invoked [ Rule 2 ] in order to address challenges to the sufficiency of the evidence to support a conviction." State v. Gayton-Barbosa , 197 N.C. App. 129, 134, 676 S.E.2d 586, 590 (2009) (citation omitted). However, Rule 2"should only be invoked rarely and in exceptional circumstances." Id. at 134, 676 S.E.2d at 589 (citation and internal quotation marks omitted); see also Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co. , 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008). Further, "precedent cannot create an automatic right to review via Rule 2. Instead, whether an appellant has demonstrated that his matter is the rare case meriting suspension of our appellate rules is always a discretionary determination to be made on a case-by-case basis." State v. Campbell , 369 N.C. 599, 603, 799 S.E.2d 600, 603 (2017).

Notably, our Supreme Court stated invoking Rule 2"must necessarily be made in light of the specific circumstances of individual cases and parties , such as whether substantial rights of an appellant are affected." Id. at 603, 799 S.E.2d at 602 (citation and quotation marks omitted); see also State v. Sanders , 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984) ; State v. Hart , 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007) (" Rule 2 ‘expresses an obvious residual power possessed by any authoritative rule-making body to suspend or vary operation of its published rules in specific cases where this is necessary to accomplish a fundamental purpose of the rules .’ " (quoting N.C.R. App. P. 2 drafting comm. comment. (1975) ).

Here, the State’s evidence tended to show Roy encouraged Wilson to pull the fire alarm several times throughout the school day resulting in chaos on school grounds which endangered students. Roy’s actions "[d]isrupt[ed], disturb[ed] [and] interfere[d] with the teaching of students ... [and] disturb[ed] the peace, order or discipline" at the middle school. N.C. Gen. Stat. § 14-288.4(6) (2017). Moreover, Roy subsequently harassed Wilson about talking with law enforcement.

Where there is sufficient evidence for each element of a criminal offense, manifest injustice cannot exist and suspension of appellate rules is not justified. We decline to invoke Rule 2 and dismiss Roy’s appeal on this issue.

B. Adjudication Order

Roy next contends the trial court did not make sufficient findings of fact to sustain the delinquency adjudication of disorderly conduct. We disagree.

The General Assembly has established that adjudication orders must contain the following:

If the court finds that the allegations in the petition have been proved as provided in G.S. 7B-2409,² the court shall so state in a written order of adjudication, which shall include, but not be limited to, the date of the offense, the misdemeanor or felony classification of the offense, and the date of adjudication.

N.C. Gen. Stat. § 7B-2411 (2017). Section 7B-2411"does not specifically require that an adjudication order contain appropriate findings of fact." In re J.V.J. , 209 N.C. App. 737, 740, 707 S.E.2d 636, 638 (2011) (...