In re R.P.M.

• Decision Date: 16 August 2005
• Docket Number: No. COA04-1135.,COA04-1135.
• Citation: 616 S.E.2d 627
• Court: North Carolina Supreme Court
• Parties: In re R.P.M., Juvenile.

616 S.E.2d 627

In re R.P.M., Juvenile.

No. COA04-1135.

Court of Appeals of North Carolina.

August 16, 2005.

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Appeal by Juvenile from order entered 19 March 2004 by Judge Avril U. Sisk in District Court, Mecklenburg County. Heard in the Court of Appeals 17 May 2005.

Attorney General Roy Cooper, by Assistant Attorney General Donna D. Smith, for the State.

Robert T. Newman, Asheboro, for juvenile-appellant.

WYNN, Judge.

To render a person guilty of a crime by aiding and abetting, the State must present "some evidence tending to show that he, . . . by his conduct made it known to [the] perpetrator that he was standing by to lend assistance when and if it should become necessary." State v. Keeter, 42 N.C.App. 642, 644-45, 257 S.E.2d 480, 482 (1979). In this case, Juvenile contends that the evidence presented was insufficient to support his convictions of common law robbery and assault with a deadly weapon with intent to inflict serious injury based on an aiding and abetting theory. Because the record shows that Juvenile rendered no assistance to the perpetrator of the crime and instead assisted the victim, we reverse the trial court's adjudication and disposition orders with respect to the common law robbery charge. Furthermore, because the Juvenile Petition lists a nonexistent offense — assault with a deadly weapon with intent to inflict serious injury — we must vacate the trial court's orders on that nonexisting offense.

The evidence at the hearing tended to show that: On 11 November 2003, Juvenile and two older friends, G.G. and R.C., were walking home with three pit bull dogs. Each person walked one of the dogs on a leash. On the way home they passed Fernando "Louis" Gonzales standing outside his place of work talking on a cell phone. According to Mr. Gonzales, the three males walked passed him and immediately returned. Mr. Gonzales testified that the three males were dark-skinned and approximately fifteen, seventeen, and nineteen years of age, but he never identified Juvenile as one of the three males.

R.C. asked Mr. Gonzales if he could use his cell phone. Mr. Gonzales said "no," but told him they could use the office phone inside. Mr. Gonzales testified that the "one that looked younger" hit him in the face. Mr. Gonzales testified that another of the men hit him in the face and let go of the two dogs he was holding and the dogs started biting his feet. After he was knocked to the ground, Mr. Gonzales testified that one of the men was hitting him and two of the dogs were biting him. One man then tried to get the dogs off him. He testified that one of the men went through his pockets and took eighty dollars and a necklace. Mr. Gonzales required several stitches for his injuries.

Juvenile testified that after they saw Mr. Gonzales across the street, G.G. said to R.C. "My pockets are feeling empty." The three then crossed the street, and R.C. asked Mr. Gonzales to use his cell phone. Mr. Gonzales called R.C. a "punta," and then R.C. hit Mr. Gonzales. After R.C. and Mr. Gonzales started fighting, R.C. let go of the dog's leash he was holding. The dog attacked Mr. Gonzales. G.G. said to Mr. Gonzales "Why you hit my brother?" and then pushed him down. At this point, the dog G.G. was holding also got loose. R.C. was kicking Mr. Gonzales, and a dog started shaking Mr. Gonzales's pant leg and then grabbed Mr. Gonzales by the shoulder. Juvenile kicked the dog to get it off of Mr. Gonzales. Juvenile continued to hold the leash of the third dog. Juvenile observed G.G. grab Mr. Gonzales's coveralls, but testified that he did not know G.G. had taken money until the next day. In an earlier statement, Juvenile stated that G.G. ripped open Mr. Gonzales's coverall suit and reached into his pocket and got nineteen dollars in cash. Juvenile then ran home and R.C. and G.G. followed him. R.C. asked Juvenile's guardian if he could leave one of the dogs there, and she allowed that. R.C., G.G., and Juvenile then went to Bojangles where G.G. gave Juvenile one dollar to get food.

At the close of both the State's evidence and all evidence, Juvenile made a motion to dismiss for insufficiency of the evidence; both motions were denied. The trial court adjudicated Juvenile delinquent on the charges of common law robbery and assault with a deadly weapon with intent to inflict serious injury. Juvenile was placed on probation for twelve months along with the conditions of curfew, community service, restitution, and a mental health assessment. Juvenile appealed.

On appeal, Juvenile first asserts that the trial court erred by denying his motions to dismiss the common law robbery petition, alleging that there was insufficient evidence that he aided and abetted the alleged robbery. We agree.

When reviewing a motion to dismiss, we view "the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citing State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)). If we find that substantial evidence exists to support each essential element of the crime charged and that Defendant was the perpetrator, it is proper for the trial court to have denied the motion. State v. Malloy, 309 N.C. 176, 178, 305 S.E.2d 718, 720 (1983). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citing State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980)).

"Common law robbery is the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear." State v. Parker, 322 N.C. 559, 566, 369 S.E.2d 596, 600 (1988) (quotation omitted); State v. Wilson, 158 N.C.App. 235, 238, 580 S.E.2d 386, 389 (2003) (same). The State charged Juvenile with the alleged robbery through aiding and abetting. "`All who are present at the place of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose to the knowledge of the actual perpetrator, are principals and equally guilty.'" Keeter, 42 N.C.App. at 644, 257 S.E.2d at 482 (quoting State v. Ham, 238 N.C. 94, 97, 76 S.E.2d 346, 348 (1953)).

To render one who does not actually participate in the commission of a crime guilty of the offense committed, there must be some evidence tending to show that he, . . . by his conduct made it known to [the] perpetrator that he was standing by to lend assistance when and if it should become necessary.

Id. at 645, 257 S.E.2d at 482; see also, e.g., State v. Penland, 343 N.C. 634, 650, 472 S.E.2d 734, 743 (1996) (same), cert. denied, 519 U.S. 1098, 117 S.Ct. 781, 136 L.Ed.2d 725 (1997).

Juvenile cites to State v. Ikard, 71 N.C.App. 283, 321 S.E.2d 535 (1984), to support his argument that his mere presence during the alleged robbery was not sufficient to constitute aiding and abetting. In Ikard, the defendant was charged with armed robbery, of which the State alleged he should be found guilty because he either acted in concert with or aided and abetted the perpetrators. Id. at 284-85, 321 S.E.2d at 536. In Ikard, the defendant took the victim's radio, walked away with three other men, and then stood by while two of the men went back and robbed the victim at gun point. Id. The defendant then left the scene with the two men. Id. This Court found that there was no evidence that the defendant, who stood twenty to twenty-five feet away from the crime scene, knew that the perpetrators of the armed robbery were armed or were going to commit the crime, and that there was no evidence that the defendant encouraged the crime or indicated he stood prepared to render assistance. Id. at 285-86, 321 S.E.2d at 537.

Here, the State asserts that because Juvenile heard G.G. say to R.C., "My pockets are feeling empty[,]" after spotting Mr. Gonzales, Juvenile knew G.G. was going to rob Mr. Gonzales. But Juvenile testified that he had no knowledge that this statement indicated G.G. was going to rob Mr. Gonzales. Like in Ikard, this is not sufficient evidence to show that Juvenile knew that G.G. was going to rob Mr. Gonzales. Nor did the State introduce any evidence tending to show that Juvenile encouraged G.G. and R.C. in the commission of the crime, or that he by word or deed indicated to them that he stood by prepared to assist. See Ikard, 71 N.C.App. at 286, 321 S.E.2d at 537. In fact, all evidence introduced indicated that Juvenile was not rendering assistance in committing the crime, but instead tried to help stop the attack. Also, Juvenile ran away before G.G. and R.C.

Viewing the evidence in the light most favorable to the State, there was insufficient evidence to take the case to a jury on the charge of common law robbery. The trial court erred in denying the motions to dismiss the charge of common law robbery.

Juvenile next asserts that the trial court erred by denying his motions to dismiss the "assault with a deadly weapon with intent to inflict serious injury" petition.

Section 7B-1802 of the North Carolina General Statutes provides in pertinent part:

A petition in which delinquency is alleged shall contain a plain and concise statement, without allegations of an evidentiary nature, asserting facts supporting every element of a criminal offense and the juvenile's commission thereof with sufficient precision clearly to apprise the juvenile of the conduct which is the subject of the allegation.

N.C. Gen.Stat. § 7B-1802 (2004). When a petition is fatally deficient, it is inoperative and fails to evoke the jurisdiction of the court. In re J.F.M., ___ N.C.App. ___, ___, 607 S.E.2d 304, 309, disc. review denied, 359 N.C. 411, 612 S.E.2d 320 (2005); In re Green, 67 N.C.App. 501, 504, 313 S.E.2d 193, 195 (1984). Because juvenile petitions are generally held to the standards of a criminal indictment, ...