In re A.N.C., COA12–482.

Decision Date05 February 2013
Docket NumberNo. COA12–482.,COA12–482.
PartiesIn the Matter of A.N.C., JR.
CourtNorth Carolina Court of Appeals

750 S.E.2d 835

In the Matter of A.N.C., JR.

No. COA12–482.

Court of Appeals of North Carolina.

Feb. 5, 2013.



[750 S.E.2d 837]

Appeal by juvenile from adjudication and disposition orders entered 16 December 2011 by Judge Denise S. Hartsfield in Forsyth County District Court. Heard in the Court of Appeals 27 September 2012.

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

Mark L. Hayes for Juvenile–Appellant.


ERVIN, Judge.

Juvenile A.N.C., Jr.,1 appeals from orders placing him on juvenile probation subject to certain specified terms and conditions based upon determinations that he had engaged in the unauthorized use of a motor vehicle, operated a motor vehicle without being properly licensed to do so, and operated a motor vehicle in a reckless manner. On appeal, Andrew contends that the trial court committed plain error by admitting into evidence a statement that he had made to the investigating officer and by denying his motion to dismiss the juvenile petitions that had been issued against him for insufficiency of the evidence. After careful consideration of Andrew's challenges to the trial court's orders in light of the record and the applicable law, we conclude that the trial court's orders should be affirmed in part and reversed in part and that this case should be remanded to the Forsyth County District Court for the entry of a new dispositional order.

I. Factual Background
A. Substantive Facts

On 12 July 2011, Officer J.O. Singletary of the Winston–Salem Police Department received a call concerning a motor vehicle accident. After arriving at the accident scene, Officer Singletary observed a motor vehicle that had collided with a utility pole. The vehicle, which was still warm at the time of Officer Singletary's arrival, was registered to Andrew's mother.

At that point, Officer Singletary noticed Andrew and two other juveniles, who were located about fifty feet from the wreckage and who were “walking briskly” away from the scene. After making this observation, Officer Singletary questioned all three juveniles concerning what had happened. After a five minute conversation, Andrew, who was thirteen years old at the time, admitted that he had been driving the wrecked vehicle.

B. Procedural History

On 25 August 2011, petitions alleging that Andrew should be adjudicated a delinquent juvenile on the grounds that he had committed the offenses of reckless driving in violation of N.C. Gen.Stat. § 20–140(b), operating a motor vehicle without being properly licensed to do so in violation of N.C. Gen.Stat. § 20–7(a), and unauthorized use of a motor vehicle in violation of N.C. Gen.Stat. § 14–72.2 were filed. On 15 December 2011, the petitions that had been filed against Andrew came on for hearing before the trial court. At the conclusion of the adjudication hearing, the trial court adjudicated Andrew to be a delinquent juvenile based upon a determination that he had committed the offenses of unauthorized use of a motor vehicle, operating a motor vehicle without being properly licensed to do so, and reckless driving. After conducting the required dispositional hearing, the trial court ordered that Andrew be placed on juvenile probation subject to a number of terms and conditions, including, but not limited to, a requirement that he cooperate with a specified treatment program and attend school daily in the absence of a valid excuse. Andrew noted an appeal to this Court from the trial court's adjudication and dispositional orders.

II. Legal Analysis
A. Admissibility of Andrew's Statement

In his initial challenge to the trial court's orders, Andrew contends that the trial court erred by admitting evidence to the effect that he had acknowledged having driven the wrecked vehicle on the grounds that the admission

[750 S.E.2d 838]

of the challenged evidence violated N.C. Gen.Stat. § 7B–2101, his rights under the decision of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and his federal and state constitutional rights to be free from compulsory self-incrimination. We do not find Andrew's arguments to be persuasive.

As an initial matter, we note that Andrew did not assert his challenge to the admission of the relevant portion of Officer Singletary's testimony in the court below. Although Andrew argues that his challenge to the admission of the testimony in question based upon N.C. Gen.Stat. § 7B–2101(d) rests upon a statutory mandate which is deemed preserved for purposes of appellate review despite the absence of a contemporaneous objection, State v. Jones, 336 N.C. 490, 497, 445 S.E.2d 23, 26 (1994) (citing State v. Ashe, 314 N.C. 28, 39–40, 331 S.E.2d 652, 659 (1985)), the Supreme Court has flatly held that challenges to the admissibility of evidence based upon N.C. Gen.Stat. § 7B–2101 must be raised by means of a motion to suppress in order to preserve any challenge to the admission of such evidence for appellate review. State v. Jenkins, 311 N.C. 194, 204, 317 S.E.2d 345, 351 (1984) (addressing a claim asserted pursuant to former N.C. Gen.Stat. § 7A–595(a)). Thus, the only basis upon which Andrew is entitled to assert any of his challenges to the admission of his statement to Officer Singletary before the Court is in the event that he can establish the existence of plain error. State v. Muhammad, 186 N.C.App. 355, 359, 651 S.E.2d 569, 573 (2007), appeal dismissed,362 N.C. 242, 660 S.E.2d 537 (2008).

“In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R.App. P. 10(a)(4). An alleged error rises to the level of plain error when it is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done.’ ” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982), cert. denied,459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982)). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). As a result, we review Andrew's challenges to the admission of his statement to Officer Singletary utilizing a plain error standard of review.

1. Custodial Interrogation

According to N.C. Gen.Stat. § 7B–2101(b), “no in-custody admission or confession resulting from interrogation may be admitted into evidence unless the confession or admission was made in the presence of the juvenile's parent, guardian, custodian, or attorney.” Similarly, N.C. Gen.Stat. § 7B–2101(d) provides that, “[b]efore admitting into evidence any statement resulting from custodial interrogation, the court shall find that the juvenile knowingly, willingly, and understandingly waived the juvenile's rights,” with the court being precluded from finding that a “knowing, willing, and understanding” waiver had occurred if the juvenile was not informed of his right to have a parent present. State v. Fincher, 309 N.C. 1, 11, 305 S.E.2d 685, 692 (1983). Finally, the decision of the United States Supreme Court in Miranda, 384 U.S. at 444–45, 86 S.Ct. at 1612, 16 L.Ed.2d at 706–07, specifies that a suspect subjected to custodial interrogation must be informed that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed,” before any statement made during the course of such an interrogation can be used against him at trial. As a result, according to well-established law, Miranda warnings and the protections of N.C. [Gen.Stat.] § 7B–2101 apply only to custodial interrogations.” In re W.R., 363 N.C. 244, 247, 675 S.E.2d 342, 344 (2009) (citing In re W.R., 179 N.C.App. 642, 645, 634 S.E.2d 923, 926 (2006)). In view of the fact that Andrew was never advised of his rights pursuant to N.C. Gen.Stat. § 7B–2101 and Miranda, the critical question for

[750 S.E.2d 839]

our determination is the extent, if any, to which Andrew was subjected to a custodial interrogation.

The test for determining if a person is in custody is whether, considering all the circumstances, a reasonable person would not have thought that he was free to leave because he had been formally arrested or had had his freedom of movement restrained to the degree associated with a formal arrest.

Id. at 248, 675 S.E.2d at 344. In determining whether a juvenile has been subjected to custodial interrogation, a reviewing court must take a juvenile's age into account “so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer.” J.D.B. v. North Carolina, ––– U.S. ––––, ––––, 131 S.Ct. 2394, 2406, 180 L.Ed.2d 310, 326 (2011).


In attempting to persuade us that he was being subjected to a custodial interrogation at the time that he admitted having driven the wrecked vehicle, Andrew points to the fact that the law required him to stay at the scene of the accident and contends that, given that he was attempting to leave the scene of the accident by walking “briskly” away at the time of Officer Singletary's arrival, the fact that he remained on the scene after being stopped by Officer Singletary meant that he was “in custody” for purposes of N.C. Gen.Stat. § 7B–2101 and Miranda. Neither argument is persuasive.

Admittedly, North Carolina law requires an individual to “remain with the vehicle at the scene of the crash until a law enforcement officer completes the investigation of the crash or authorizes the driver to leave.” N.C. Gen.Stat. § 20–166(c). The General Assembly...

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