In re R.D.L.

• Decision Date: 05 August 2008
• Docket Number: No. COA07-1427.,COA07-1427.
• Citation: 664 S.E.2d 71
• Parties: In the Matter of R.D.L., Juvenile.
• Court: North Carolina Court of Appeals

664 S.E.2d 71

In the Matter of R.D.L., Juvenile.

No. COA07-1427.

Court of Appeals of North Carolina.

August 5, 2008.

Appeal by Respondent from orders entered 22 August 2007 by Judge Shirley H. Brown in District Court, Buncombe County. Heard in the Court of Appeals 30 April 2008.

Attorney General Roy Cooper, by Assistant Attorney General Alexandra Gruber, for the State.

Carol Ann Bauer, Morganton, for Respondent.

McGEE, Judge.

R.D.L. (Respondent), a juvenile, appeals from adjudication and disposition orders entered 22 August 2007. For the reasons set forth herein, we reverse seven of the nine adjudications and remand for a new disposition as to the two remaining adjudications.

Officer Jackie Stepp (Officer Stepp) of the Asheville Police Department filed nine juvenile petitions on 23 May 2007, alleging that Respondent was a delinquent juvenile, and charging that: (1) on 8 December 2006, Respondent damaged a 2007 black Chevrolet Silverado, owned by Tony Ray Clark, with an "unknown blunt object [that] was thrown and hit the truck in the passenger side"; (2) on 13 January 2007, Respondent broke two windows in a 1994 beige Ford Aerostar owned by Mary Honeycutt MacKintosh, causing damage in excess of $200.00; (3) on 13 January 2007, Respondent damaged real property at Braswell Scale and Equipment (Braswell Scale), by breaking "[w]indows on the right side of the building" and damaging the windshield of a commercial box truck; (4) on 15 January 2007, Respondent "smashed out" all the windows in a 1993 Ford Econoline van owned by "Hav A Cup, Karl Lail," causing damage in excess of $200.00; (5) on 22 January 2007, Respondent damaged the back doors and back right side of a 2007 white Chevrolet van owned by Enterprise Leasing, causing damage in excess of $200.00; (6) on 22 January 2007, Respondent broke three windows "in the back of the business" on real property owned by Braswell Scale; (7) on 13 March 2007, Respondent "shot out" the back door window of a 1993 Ford Econoline van owned by "Karl Lail, Hav A Cup"; (8) on 23 April 2007, Respondent broke four front windows of a warehouse owned by "Connie Byrd, Bruner & Lay"; and (9) on 24 April 2007, Respondent broke a glass window on the south side of the Braswell Scale building.

At the start of trial, the State moved for joinder of Respondent's case with the case involving his co-respondent, D.S. Counsel for Respondent and for D.S. objected to joinder arguing that the incidents were diverse and that there was no indication that the same individuals were involved in all of the incidents. The trial court allowed the State's motion for joinder.

John Timothy Farlow, Jr. (Mr. Farlow) testified that he was a salesman at Braswell Scale. Mr. Farlow testified that he told police about damage to personal and real property that occurred at Braswell Scale on 13 January 2007, 22 January 2007, and 24 April 2007. However, Mr. Farlow twice testified that he did not know which damage occurred on which date. Mr. Farlow also testified that he had a video which showed "a busted window and fireworks going off between the vehicles" on 24 April 2007. The video was admitted into evidence. Mr. Farlow testified as follows that he went with Officer Stepp to Respondent's grandmother's house:

Q What, if anything, happened there?

A We basically asked [Respondent] — you know, he didn't say a whole lot. He cried most of the time. Finally he said that he — his grandmother said, "You better tell them what's going on," and [Respondent] told us that he did do it and he told — we asked him who the third person that had been with him — wasn't in the picture, who it was, and he told us it was [D.W.] and he assured us he wouldn't be back.

Q After you spoke with Officer Stepp and met with [D.S.] and his mother and [Respondent] and his grandmother, have you had any problem since then?

A No, ma'am.

Q Have you had any windows broken out?

A No, ma'am.

Q Of vehicles or your building?

A No, ma'am.

On cross-examination, Mr. Farlow testified as follows:

Q And you don't recall what day it was that you went to [Respondent's] house?

A No. I don't. I know I've got a file at work.

Q If Officer Stepp's report indicated that was the 25th day of April, would you have any reason to doubt that?

A No.

Q When you went to the house that day, you were specifically inquiring about the incident that happened the day before?

A No. We were inquiring about all of them.

Q Well, you said that [Respondent] said he did it. Isn't it true that what he said was that he had thrown a rock at someone and had almost hit someone?

A I don't recall. He pretty much basically confessed to being at all —

Q So you don't recall the exact words he said?

A No.

Q And you didn't write them down?

A No.

Tony Clark (Mr. Clark) testified regarding an incident that occurred on 8 December 2006. Mr. Clark testified that as he drove past Hillside Mobile Home Park on Sweeten Creek Road, he "felt and heard [a] wild bang on [his] truck." Mr. Clark pulled over and saw "a big dent on the rear-passenger side of the truck." Mr. Clark further testified that as soon as he heard the thump on his truck, he looked back and saw two or three people running near the road and "up under the trees." Mr. Clark identified D.S. as one of the people he saw running near the road on 8 December 2006, but he could not identify Respondent.

Officer Stepp testified that she showed D.S. a still photograph derived from the video taken on 24 April 2007, and D.S. admitted that he was one of the individuals in the photograph. Officer Stepp also testified that D.S. identified Respondent as the other person in the photograph, and that Respondent admitted that he was the other person in the photograph. Officer Stepp also testified that she went to Respondent's grandmother's house:

We went up there, just talked about what had happened. As he said, [Respondent] was pretty upset about the situation. [Respondent] admitted that he threw the rock. [Respondent] specifically said, "Yeah, it's me in the picture. Yeah, I threw the rock." [Respondent] also stated that back in January, when the most damage was done to the properties, that it was he, [D.S.], and [D.W.]

On cross-examination, Officer Stepp twice clarified that Respondent admitted involvement in only two incidents at Braswell Scale. She testified that Respondent "also stated that he's thrown rocks at vehicles[,]" but that Respondent did not admit to hitting a vehicle with a rock. Officer Stepp further testified that she did not question Respondent about any specific incidents other than the 24 April 2007 incident at Braswell Scale.

At the close of the State's evidence, Respondent's counsel moved to dismiss. Respondent's counsel conceded that the State had offered sufficient evidence of the 13 January 2007 and 24 April 2007 incidents at Braswell Scale. However, Respondent's counsel moved to dismiss the remaining seven petitions for insufficient evidence. The trial court denied the motion. Respondent did not present evidence.

In an adjudication order entered 22 August 2007, the trial court adjudicated Respondent delinquent "by reason of four counts of injury to real property in violation of G.S. 14-127 and five counts of injury to personal property in violation of G.S. 14-160." The trial court entered a Level 1 disposition on 22 August 2007, which: (1) placed Respondent on probation for a period of twelve months; (2) ordered Respondent to serve 100 hours of community service; (3) imposed a curfew upon Respondent; (4) ordered that Respondent not associate with D.S. or D.W.; (5) ordered that Respondent not be on the property of "Hav A Cup, Braswell Scale, [and] Brunner & Lay, Inc."; and (6) ordered Respondent's "[p]arent to contact Western Highlands within 10 days to schedule an appointment for [Respondent] to be assessed for mental health services." Respondent appeals.

I.

Respondent first argues the trial court erred by denying his motion to dismiss seven of the nine juvenile petitions. Respondent contends that the State's evidence against him in seven of the nine petitions was "weak to the point of being mere speculation." We agree.

In reviewing a motion to dismiss a juvenile petition, courts must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference that may be drawn from the evidence. In re Brown, 150 N.C.App. 127, 129, 562 S.E.2d 583, 585 (2002). "Where the juvenile moves to dismiss, the trial court must determine `whether there is substantial evidence (1) of each essential element of the offense charged, . . . and (2) of [the] [juvenile's] being the perpetrator of such offense.'" In re Heil, 145 N.C.App. 24, 28, 550 S.E.2d 815, 819 (2001) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "`Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion.'" In re S.R.S., 180 N.C.App. 151, 156, 636 S.E.2d 277, 281 (2006) (quoting State v. Wood, 174 N.C.App. 790, 795, 622 S.E.2d 120, 123 (2005)). 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 Heil, 145 N.C.App. at 28, 550 S.E.2d at 819 (quoting Powell, 299 N.C. at 98, 261 S.E.2d at 117).

In the case before us, the State did not present individualized proof of each of the offenses charged in the nine petitions. In fact, the State did not present any testimony from the property owners, other than Mr. Farlow and Mr. Clark, whose real and personal property was allegedly damaged. Rather, in its brief, the State contends that Respondent made a general admission at trial to all nine offenses:

Six of the incidents occurred in close temporal and physical proximity, and all six involved cars being damaged by rocks. [Respondent] confessed that he threw rocks at cars. [Respondent] also said "it would...