In re J.M.

• Decision Date: 20 September 2011
• Docket Number: NO. COA11-138,COA11-138
• Parties: IN THE MATTER OF J.M.
• Court: North Carolina Court of Appeals

IN THE MATTER OF J.M.

NO. COA11-138

NORTH CAROLINA COURT OF APPEALS

Dated: September 20, 2011

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Johnston County No. 09 JB 81

Appeal by respondent from adjudication and disposition orders entered 11 October 2010 by Judge Addie H. Rawls in Johnston County District Court. Heard in the Court of Appeals 16 August 2011.

Attorney General Roy Cooper, by Assistant Attorney General Eryn E. Linkous, for the State.

Ryan McKaig, for juvenile-appellant.

ERVIN, Judge.

Juvenile J.M. appeals from orders adjudicating him delinquent based upon findings that he was responsible for resisting, delaying, and obstructing a public officer and carrying a concealed weapon. On appeal, Juvenile argues that the trial court (1) erred by finding him responsible for resisting, delaying, and obstructing a public officer on the grounds that the juvenile petition purporting to allege thecommission of that offense was fatally defective and that the evidence did not support the trial court's determination that he had resisted, delayed, or obstructed a public officer and (2) by admitting testimony that the investigating officer seized a set of brass knuckles from Juvenile during a search incident to arrest. After careful consideration of Juvenile's challenges to the trial court's orders in light of the record and the applicable law, we conclude that the challenged adjudication orders should be reversed and that this case should be remanded to the Johnston County District Court for further proceedings not inconsistent with this opinion.¹

I. Factual Background

A. Substantive Facts

On 3 September 2010, Officer Brian K. O'Branovich of the Smithfield Police Department was patrolling an area near certain apartments located on Caswell and Bridge Streets in Smithfield, which he described as a "known drug area." At approximately 7:20 p.m. on that date, Officer O'Branovich observed a group of people, including Juvenile, standing near the apartments. As Officer O'Branovich approached the group, its members dispersedand ran in different directions, causing Officer O'Branovich to demand that they stop. During his pursuit of the group, Officer O'Branovich encountered and stopped Juvenile. Aside from his flight from Officer O'Branovich, Juvenile had not done anything suspicious prior to his detention.

After his detention, Juvenile declined to give Officer O'Branovich any identifying information. Instead, Juvenile was belligerent, uncooperative, and used profane language. Officer O'Branovich placed Juvenile under arrest for resisting, delaying, and obstructing a public officer and searched Juvenile incident to arrest. During the course of this search, Officer O'Branovich found a set of brass knuckles in Juvenile's right rear pants pocket.

B. Procedural History

On 10 September 2010, Officer O'Branovich filed juvenile petitions alleging that Juvenile should be adjudicated delinquent for resisting, delaying, and obstructing a public officer and carrying a concealed weapon. Adjudication and disposition hearings were conducted before the trial court on 11 October 2010. At the conclusion of those proceedings, the trial court found Juvenile responsible for resisting, delaying, and obstructing a public officer and carrying a concealed weapon. Based upon those determinations, the trial court concluded thatJuvenile was subject to its dispositional authority, determined that a Level 2 disposition was appropriate, and ordered that Juvenile be continued on probation. Juvenile noted an appeal to this Court from the trial court's adjudication and dispositional orders.

II. Legal Analysis²

A. Sufficiency of Petition Alleging Resisting a Public Officer

On appeal, Juvenile contends that the juvenile petition that attempted to charge him with resisting, delaying, and obstructing a public officer was fatally defective on the grounds that it failed to properly allege the duty that Officer O'Branovich was discharging or attempting to discharge at the time of Juvenile's alleged misconduct. We agree.

"In a juvenile delinquency action, the juvenile petition 'serves essentially the same function as an indictment in a felony prosecution and is subject to the same requirement that it aver every element of a criminal offense, with sufficient specificity that the accused is clearly apprised of the conduct for which he is being charged.'" In re S.E.S., 180 N.C. App.151, 153, 636 S.E.2d 277, 280 (2006) (quoting In re Griffin, 162 N.C. App. 487, 493, 592 S.E.2d 12, 16 (2004)). "'When a petition is fatally deficient, it is inoperative and fails to evoke the jurisdiction of the court.'" In re B.D.W., 175 N.C. App. 760, 761, 625 S.E.2d 558, 560 (2006) (quoting In re J.F.M. & T.J.B., 168 N.C. App. 143, 150, 607 S.E.2d 304, 309, appeal dismissed and disc. review denied, 359 N.C. 411, 612 S.E.2d 320 (2005)). "Because juvenile petitions are generally held to the standards of a criminal indictment, we consider the requirements of the indictments of the offenses at issue." Id. As a result of the fact that fatal defects in a juvenile petition are jurisdictional, challenges to the sufficiency of such petitions may be raised at any time despite the juvenile's failure to raise this issue before the trial court. S.E.S., 180 N.C. App. at 153, 636 S.E.2d at 279; State v. Call, 353 N.C. 400, 429, 545 S.E.2d 190, 208 (citation omitted), cert. denied, 534 U.S. 1046, 122 S. Ct. 628, 151 L. Ed. 2d 548 (2001). We review challenges to the sufficiency of an indictment or juvenile petition using a de novo standard of review. State v. Marshall, 188 N.C. App. 744, 748, 656 S.E.2d 709, 712 (2007), disc. review denied, 362 N.C. 368, 661 S.E.2d 890 (2008).

N.C. Gen. Stat. § 15A-924(a) provides, in pertinent part, that:

A criminal pleading 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.

As a result, a valid indictment must charge "all the essential elements of the alleged criminal offense." State v. Lewis, 58 N.C. App. 348, 354, 293 S.E.2d 638, 642 (1982) (citing State v. Morgan, 226 N.C. 414, 415, 38 S.E.2d 166, 167 (1946)), cert. denied, 311 N.C. 766, 321 S.E.2d 152 (1984). Put another way, a valid indictment or other charging instrument must allege "all the facts necessary to meet the elements of the offense." State v. Ellis, 168 N.C. App. 651, 655, 608 S.E.2d 803, 806 (2005) (citing State v. Alston, 310 N.C. 399, 407, 312 S.E.2d 470, 475 (1984)).

According to N.C. Gen. Stat. § 14-223, a person is guilty of resisting, delaying, and obstructing a public officer when he or she "willfully and unlawfully resist[s], delay[s] or obstruct[s] a public officer in discharging or attempting to discharge a duty of his office." Thus, an indictment for the charge of resisting a public officer must "'1) identify the officer by name, 2) indicate the official duty being discharged, and 3) indicate generally how defendant resisted the officer.'"J.F.M., 168 N.C. App. at 150-51, 607 S.E.2d at 309 (quoting State v. Swift, 105 N.C. App. 550, 553, 414 S.E.2d 65, 67 (1992)). "In the offense of resisting an officer, the resisting of the public officer in the performance of some duty is the primary conduct proscribed by that statute and the particular duty that the officer is performing while being resisted is of paramount importance and is very material to the preparation of the defendant's defense." State v. Waller, 37 N.C. App. 133, 135, 245 S.E.2d 808, 810 (1978) (quotation omitted). Thus, the Supreme Court and this Court have invalidated indictments or other charging instruments that failed to allege the specific duty that the officer was discharging or attempting to discharge at the time that the defendant allegedly resisted, delayed, or obstructed the performance of his or her duties. State v. Dunston, 256 N.C. 203, 203-04, 123 S.E.2d 480, 480-81 (1962) (holding that an indictment alleging that "[the officer] was then and there attempting to discharge and discharging the duty of his office by hitting said officer in the stomach and kicking him on the legs" was fatally defective for failing to state the duty the officer was discharging or attempting to discharge); State v. Wells, 59 N.C. App 682, 684-85, 298 S.E.2d 73, 75 (1982) (holding that an indictment alleging that the defendant "did resist and delay [an officer] performing the duties of hisoffice by striking said officer with his hands and fist" was fatally defective for failing to describe the duty the officer was discharging or attempting to discharge).

The juvenile petition that attempted to charge Juvenile with resisting, delaying, and obstructing a public officer alleged that:

[T]he juvenile did unlawfully and willfully resist, delay and obstruct . . . B.K. O'Branovich, a public officer holding the office of . . . Smithfield Police Officer,. . . [b]y running from Sm[i]thfield Police Department when he was demanded to stop.

At the time, the officer was discharging and attempting to discharge a duty of his/her office . . . [t]his subject was in a known drug area and when he noticed the marked patrol unit he started to run. I demanded the subject to stop running and continued on ignoring my commands.

A careful reading of the juvenile petition filed against Juvenile in this case reveals that the petition fails to describe any duty that Officer O'Branovich was discharging or attempting to discharge at the time of Juvenile's flight. The juvenile petition at issue in this case is indistinguishable in any meaningful way from the charging...