In re S.R.S.

• Decision Date: 07 November 2006
• Docket Number: No. COA06-47.,COA06-47.
• Citation: 636 S.E.2d 277
• Parties: In the Matter of S.R.S.
• Court: North Carolina Court of Appeals

636 S.E.2d 277

In the Matter of S.R.S.

No. COA06-47.

Court of Appeals of North Carolina.

November 7, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by respondent-juvenile from the order entered 23 September 2005 by Judge Scott C. Etheridge in Randolph County District Court. Heard in the Court of Appeals 13 September 2006.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Meredith Jo Alcoke, for the State.

Michelle FormyDuval Lynch, Whiteville, for respondent-juvenile.

JACKSON, Judge.

On 21 April 2005, Cindy Walker ("Walker"), a teacher at Hopewell Elementary School in Trinity, North Carolina, was walking down the hall of the school when she heard a commotion coming from one of the classrooms. As she neared the classroom, Walker saw S.R.S. ("juvenile") standing in the doorway of the room, being prevented from entering the hallway by a teacher. The juvenile proceeded to shout at Walker, stating that "I'm going to kill your fucking daughter," and "I'm going to bring a gun to school tomorrow and kill your fucking daughter." Walker testified that she knew the juvenile was talking to her, as he was looking directly at her. Walker stated that she took the juvenile seriously based on past incidents between the juvenile and Walker's daughter. Walker reported the threats to school officials, who in turn reported the threats to the School Resource Officer.

On 22 April 2005, a Juvenile Petition was filed alleging the juvenile had committed the misdemeanor offense of communicating threats. The juvenile was found delinquent following a 19 September 2005 adjudication hearing, and was placed on twelve months of supervised probation following a disposition hearing on the same date. The juvenile appeals from the adjudication and disposition.

We begin by noting that the juvenile presents arguments as to only three of his eight assignments of error listed in the record on appeal. Therefore, the five assignments of error for which no argument has been presented are deemed abandoned. N.C. R.App. P. 28(b)(6) (2006).

The juvenile contends the juvenile petition charging him with communicating threats was fatally defective, in that it failed to properly allege all of the essential elements of the offense charged. The State contends that our review of this issue should be for plain error only, as the juvenile failed to raise this issue before the lower court. However, it is well established that fatal defects in an indictment or a juvenile petition are jurisdictional, and thus may be raised at any time. See State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981); In re R.P.M., 172 N.C.App. 782, 787, 616 S.E.2d 627, 631 (2005). Therefore, we review the juvenile's argument on this issue to determine if the juvenile petition was in fact fatally defective.

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 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., ___ N.C.App. ___, ___, 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)); R.P.M., 172 N.C.App. at 787-88, 616 S.E.2d at 631. "`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.'" B.D.W., ___ N.C.App. at ___, 625 S.E.2d at 560.

Although an indictment must give a defendant notice of every element of the crime charged, the indictment need not track the precise language of the statute. "[A]n indictment which avers facts which constitute every element of an offense does not have to be couched in the language of the statute." State v. Hicks, 86 N.C.App. 36, 40, 356 S.E.2d 595, 597 (1987). An indictment need not even state every element of a charge so long as it states facts supporting every element of the crime charged. State v. Jordan, 75 N.C.App. 637, 639, 331 S.E.2d 232, 233 (1985). North Carolina General Statutes, section 15A-924(a)(5) (2005) requires that a criminal pleading set forth "[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." Id.

Our courts have recognized that while an indictment should give a defendant sufficient notice of the charges against him, it should not be subjected to hyper technical scrutiny with respect to form.

[I]t is not the function of an indictment to bind the hands of the State with technical rules of pleading; rather, its purposes are to identify clearly the crime being charged, thereby putting the accused on reasonable notice to defend against it and prepare for trial, and to protect the accused from being jeopardized by the State more than once for the same crime.

Sturdivant, 304 N.C. at 311, 283 S.E.2d at 731.

In the instant case, the juvenile was charged with communicating threats, in violation of North Carolina General Statutes, section 14-277.1. Pursuant to section 14-277.1, an individual commits the misdemeanor of communicating threats when:

(1) He willfully threatens to physically injure the person or that person's child, sibling, spouse, or dependent or willfully threatens to damage the property of another;

(2) The threat is communicated to the other person, orally, in writing, or by any other means;

(3) The threat is made in a manner and under circumstances which would cause a reasonable person to believe that the threat is likely to be carried out; and

(4) The person threatened believes that the threat will be carried out.

N.C. Gen.Stat. § 14-277.1(a) (2005) (emphasis added). The juvenile's petition alleged the following:

The juvenile is a delinquent juvenile as defined by G.S. 7B-1501(7) in that on or about the date of alleged offense shown above and in the county named above the juvenile did unlawfully and willfully threaten to physically injure the person and damage the property of:

(name person) Cindy Walker

The threat was communicated to the person in the following manner (describe) by orally stating to the victim several times "I'm going to bring a gun to school and kill your fucking daughter."

and the threat was made in a manner and under circumstances which would cause a reasonable person to believe that the threat was likely to be carried out and the person believed that the threat would be carried out.

The juvenile contends the petition is fatally defective in that it alleges the juvenile threatened to injure the person and property of Walker, whereas the specific statement alleged to be the actual threat referred only to injury to Walker's daughter. The juvenile argues that the allegation that he "did unlawfully and willfully threaten to physically injure the person and damage the property", is the fatal defect which causes the petition to fail to properly allege the offense of communicating threats. He contends therefore that his adjudication as delinquent, and subsequent disposition, should be vacated.

Here, the juvenile petition charged the juvenile with communicating threats, and correctly identified the applicable statute, North Carolina General Statutes, section 14-277.1. It correctly named the victim, and described precisely the actual threat that was the basis of the charge. Accordingly, we hold the juvenile received sufficient notice of the charge against him.

The juvenile was placed on notice of the particular statute he was accused of violating, and was given the corresponding statute number. The only ground for potential confusion was the petition's stating, "[T]he juvenile did unlawfully and willfully threaten to physically injure the person and damage the property of ... Cindy Walker." This, if left uncured, would render the juvenile petition fatally defective in that it would seem to accuse the juvenile of both threatening the victim and threatening to damage the victim's property. Also problematic is the fact that the petition initially accused the juvenile of threatening injury to the person of the victim, when the juvenile actually was charged with threatening the victim's child. But the statute makes clear that threatening the victim's child is treated the same as threatening the victim's person. N.C. Gen. Stat. § 14-277.1 (2005).

Further, any confusion created by the first paragraph of the petition was cleared up by the subsequent paragraph setting forth the precise conduct forming the basis of the charge. As such, the totality of the circumstances demonstrate that the juvenile had notice of the precise statutory provision he was being charged under, as well as the precise conduct that was alleged to be a violation of the statutory provision. The juvenile therefore had notice sufficient to allow him to mount a defense to the charge, and he can show no unfair prejudice or danger of unfair prejudice from the defective first paragraph. Also, the petition was specific enough to allow the trial court to enter judgment upon a finding of delinquency and to alleviate any concerns with respect to double jeopardy. This is all that is required of an indictment. State v. Jones, 110 N.C.App. 289, 291, 429 S.E.2d 410, 411-12 (1993) (quoting State v. Reavis, 19 N.C.App. 497, 498, 199 S.E.2d 139, 140 (1973)). This also is all that is required of a juvenile petition. As the juvenile's petition was not fatally defective, we hold the juvenile's...