In re J.B., No. COA17-400

• Docket Nº: No. COA17-400
• Citation: 257 N.C.App. 299, 809 S.E.2d 353
• Case Date: January 02, 2018
• Court: Court of Appeal of North Carolina (US)

257 N.C.App. 299
809 S.E.2d 353

In the MATTER OF: J.B.

No. COA17-400

Court of Appeals of North Carolina.

Filed: January 2, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Brent D. Kiziah, for the State.

Geeta N. Kapur, for juvenile-appellant.

CALABRIA, Judge.

257 N.C.App. 300

Where the juvenile conceded the fact that the school was an entity capable of owning property, and the State presented evidence that the school in fact owned the damaged property, the trial court did not err in denying the juvenile's motion to dismiss. Where the 10-day detention to which the trial court sentenced the juvenile, as a Level 2 offender, was for a period of confinement beyond the limits of the statute pursuant to which the juvenile was sentenced, the trial court erred in its sentence. Further, where the trial court failed to sentence the juvenile, as a Level 2 offender, to an intermediate disposition as mandated by N.C. Gen. Stat. § 7B-2508(d), the trial court erred in violation of a statutory mandate. We affirm in part, but remand for resentencing.

I. Factual and Procedural Background

On 24 March 2016, J.B. ("the juvenile")¹ , a twelve-year-old student, was in a classroom in Lincoln Heights Academy in Charlotte, North Carolina. During the class, the juvenile became upset and agitated, and pushed a

809 S.E.2d 355

number of things including, inter alia , a computer and Hewlett Packer printer from the teacher's desk onto the floor. The computer was not damaged but the printer was damaged, and eventually replaced.

257 N.C.App. 301

On 3 June 2016, a juvenile petition for delinquency was filed, alleging that the juvenile had committed the offense of injury to personal property by "damag[ing] a printer and computer after pushing it off the teachers [sic] desk[.]" During the subsequent proceeding, at the close of the State's evidence, the juvenile moved to dismiss the petition. This motion was denied. The juvenile presented no evidence.

On 16 August 2016, the juvenile was found liable for a class 2 misdemeanor, injury to personal property, and adjudicated delinquent. The trial court considered the juvenile's prior misdemeanor adjudications, and that same day, entered a disposition order, sentencing the juvenile as a Level 2 offender and ordering the juvenile to serve 10 days' detention in the custody of the Sheriff of Mecklenburg County.

From the adjudication and disposition orders, the juvenile appeals.

II. Motion to Dismiss

In his first argument, the juvenile contends that the trial court erred in denying his motion to dismiss. We disagree.

A. Standard of Review

"This Court reviews the trial court's denial of a motion to dismiss de novo ." State v. Smith , 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).

" ‘Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ " State v. Fritsch , 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes , 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) ), cert. denied , 531 U.S. 890, 121 S.Ct. 213, 148 L.Ed. 2d 150 (2000). "In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." Id . at 378-79, 526 S.E.2d at 455.

B. Analysis

At trial, the State presented only one witness, Star Kelly ("Kelly"), a "teacher-assistant" at Lincoln Heights Academy, who was present in the classroom during the juvenile's outburst. At the close of the State's evidence, the juvenile moved to dismiss. Specifically, the motion to dismiss alleged that (1) there was no evidence presented that the damage caused by the juvenile exceeded $200, and (2) there was no evidence that the owner of the property was the Charlotte-Mecklenburg Board of Education.

257 N.C.App. 302

In response to the juvenile's motion, the State first noted that "the value of the damage that was allegedly done here, that is not actually an element of the offense." The State next noted, with respect to ownership of the printer:

[W]hat we do have is a witness who testified in her six years at Lincoln Heights. She has knowledge that these printers are provided to the teachers. There's one in every single classroom. She testified that while it was not hers, she spoke—I'm sorry, let me back up—she testified that this was not hers; that it belonged to CMS and is provided to each teacher for every classroom, and that when this printer was damaged, she was provided a second one from someone at Lincoln Heights for CMS.

So I think it's sufficiently clear, Your Honor, as an employee of CMS that this printer belongs to that school, and we have produced sufficient evidence to surpass the motion to dismiss stage.

The trial court then denied the motion to dismiss.

On appeal, the juvenile contends that this was error. Specifically, the juvenile argues that the petition failed to allege that the school was an entity capable of owning property, and that the evidence at trial did not prove who owned the damaged printer.

First, the juvenile contends that the petition failed to allege that the school was an entity capable of owning property.

809 S.E.2d 356

"To be sufficient, an indictment for larceny must allege the owner or person in lawful possession of the stolen property." State v. Downing, 313 N.C. 164, 166, 326 S.E.2d 256, 258 (1985). If the entity named in the indictment is not a person, it must be alleged "that the victim was a legal entity capable of owning property[.]" State v. Woody, 132 N.C. App. 788, 790, 513 S.E.2d 801, 803 (1999). "An indictment that insufficiently alleges the identity of the victim is fatally defective and cannot support conviction of either a misdemeanor or a felony." Id .

State v. Phillips , 162 N.C. App. 719, 720-21, 592 S.E.2d 272, 273 (2004).

The juvenile contends that the petition in the instant case identified the owner of the damaged property as "Charlotte Mecklenburg Board of Education[.]" The juvenile contends that, pursuant to statute, the owner

257 N.C.App. 303

should instead have been identified as "The Charlotte-Mecklenburg County Board of Education," and that the failure to identify the Board as such was fatal to the action. See N.C. Gen. Stat. § 115C-40 (2015).

Unfortunately, the juvenile has already acknowledged that the Board of Education was properly identified as a corporate body that can own property. At trial, during the motion to dismiss, counsel made the following observation:

Secondly, the petition alleges that the owner of the property was the Charlotte-Mecklenburg Board of Education. That is a body corporate under North Carolina Education statutes. So, therefore, it is an entity capable of owning property.

(Emphasis added.) Counsel later observed:

One of the elements of damage to

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