In the Matter of N.T.

• Decision Date: 02 August 2011
• Docket Number: No. COA10–1281.,COA10–1281.
• Citation: 715 S.E.2d 183
• Parties: In the Matter of N.T.
• Court: North Carolina Court of Appeals

715 S.E.2d 183

In the Matter of N.T.

No. COA10–1281.

Court of Appeals of North Carolina.

Aug. 2, 2011.

Appeal by respondent from adjudication and disposition orders entered 8 July 2010 by Judge James L. Moore, Jr., in Onslow County District Court. Heard in the Court of Appeals 8 March 2011.

Attorney General Roy Cooper, by Assistant Attorney General Kimberly L. Wierzel, for the State.

W. Michael Spivey, Rocky Mount, for Defendant-appellant.

ERVIN, Judge.

Juvenile N.T. appeals from orders adjudicating him delinquent based upon the trial court's finding that he was responsible for committing an assault by pointing a gun in violation of N.C. Gen.Stat. § 14–34. On appeal, Juvenile argues that the device in question, an airsoft pump action imitation rifle, is not a “gun” as that term is used for purposes of N.C. Gen.Stat. § 14–34, so that the evidence presented to the trial court was insufficient to support a finding of responsibility. After careful consideration of Juvenile's challenge to the trial court's orders in light of the record and the applicable law, we conclude that Juvenile's argument has merit and that the trial court's adjudication and disposition orders should be reversed.

I. Background

A. Substantive Facts

On 18 April 2010, Ms. S. was living on Lloyd Street in Holly Ridge, North Carolina, with her husband; J.S., their eight year old son; and C.S., their eleven year old daughter.¹ On that date, C.S. was riding her bike about seven to ten feet from Juvenile and another child, A.C., when she observed that they had a BB gun. As C.S. turned away from them in order to dismount her bike, her shoulder started stinging. C.S. saw “blood gushing out of it and [said that] it ... was worse than a bee sting[,] it really hurt.” According to J.S., A.C. pointed the gun and said, “let's try to shoot your sister.” When J.S. refused, “[Juvenile] came up and pulled the trigger.” Since A.C. had said that the gun was aimed at the bike, Juvenile thought the gun was pointed at the bike when “he pulled the trigger while the other child held the gun.”

After C.S. was injured, J.S. ran inside and told Ms. S. that C.S. had “been shot[.]” When she saw her daughter, Ms. S. observed that C.S.'s right shoulder blade was injured and that her shirt was bloody. Although C.S. passed out on the bathroom floor, a paramedic summoned to examine C.S. concluded that she could wait until the next day to see a doctor.

After observing C.S., Ms. S. stepped outside and saw Juvenile running towards his home. Ms. S. followed him to that location and told Juvenile's mother about the incident. At Juvenile's house, Ms. S. saw ten year old A.C. holding a BB gun.

Ms. S. led A.C. home and told his mother what had happened. Subsequently, Juvenile's parents brought their child to Ms. S.'s house, where he apologized to C.S. and stated that, while A.C. had held and aimed the BB gun, he had pulled the trigger. On the following day, Ms. S. found the pellet that had injured C.S., which she described as a tiny plastic yellow pellet.

Detective Sergeant Darrin Jones of the Holly Ridge Police Department, who had been dispatched to investigate an incident in which “a child had been shot with a BB gun,” interviewed Juvenile in the presence of his father, after first informing Juvenile of his legal rights and obtaining a signed waiver of these rights. Juvenile told Sergeant Jones that he and A.C. were playing with a pellet gun; that A.C. “was going to shoot [J.S.]'s sister;” and that, while A.C. held the gun and pointed it towards the bicycle that C.S. was riding, Juvenile pulled the trigger.

B. Procedural History

On 3 May 2010, Sergeant Jones filed a juvenile petition with the Onslow County District Court alleging that Juvenile should be adjudicated delinquent for having violated N.C. Gen.Stat. § 14–34. The petition was approved for filing on 3 May 2010. On 8 July 2010, adjudication and disposition hearings were conducted before the trial court. At the conclusion of those proceedings, the trial court adjudicated Juvenile delinquent based upon findings that he was responsible for committing the offense alleged in the petition and determined that Juvenile was subject to the trial court's dispositional authority as a result of the fact that he had committed a serious offense as defined in N.C. Gen.Stat. § 7B–2508(a). In order to reach this conclusion, the trial court specifically determined that “the Pump Air Soft Gun [fell] within the definition of Gun herein” and that Juvenile was “a principal to the [ ] crime herein based upon the common law legal concept of ‘Acting in Concert.’ ” At the conclusion of the dispositional hearing, the trial court ordered a Level 1 disposition, placing Juvenile on probation for six months subject to supervision by a court counselor. Juvenile noted an appeal to this Court from the trial court's adjudication and dispositional orders.

II. Legal Analysis

Juvenile was found responsible for committing an assault by pointing a gun. The object that Juvenile and A.C. utilized during the events that led to the trial court's determination was described in the petition and in the testimony received at the hearing as a “BB gun.” However, after learning that the gun shot pellets made of plastic, rather than metal, the trial court requested clarification concerning the nature of the device at issue in this proceeding:

COURT: Now just for my information what was the—was this an air soft gun?

[DET.] JONES: It was a Crossley BB rifle, Your Honor.... A pump action.

COURT: Okay, okay. And did you ever view the pellet, Detective?

....

[MS. S.:] It was yellow and it was plastic and it was about the size of not the writing end of a ball point pen but the top of it as I mentioned.

COURT: See that's what, that's what puzzled me about you know when she said yellow that. But see but it's supposedly a pump, I mean I guess they make them—

RAYNOR: Yep, Judge, I can tell you from having a fourteen year old they make pump air soft guns.

COURT: Okay, okay, so it's truly not a BB gun.

RAYNOR: Right. They make them in pumps they make in them CO–2 cartridges and they make them in—

COURT: In all different configurations.

RAYNOR: Yes sir.

Thus, the undisputed evidence reflects that Juvenile was adjudicated delinquent as the result of his involvement in the use of an airsoft gun from which plastic pellets were fired using a “pump action” mechanism.² On appeal, Juvenile argues that this device does not constitute a “gun” for purposes of N.C. Gen.Stat. § 14–34, which prohibits “point[ing] any gun or pistol at any person, either in fun or otherwise, whether such gun or pistol be loaded or not loaded[.]” Thus, the ultimate issue that we must resolve in order to determine the validity of Juvenile's challenge to the trial court's orders is the extent, if any, to which the device that Juvenile utilized was a “gun or pistol” as those terms are utilized in N.C. Gen.Stat. § 14–34.

“The principal goal of statutory construction is to accomplish the legislative intent.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517 (2001) (citing Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998), cert. denied, 526 U.S. 1098, 119 S.Ct. 1576, 143 L.Ed.2d 671 (1999)). “The best indicia of that intent are the language of the statute ... the spirit of the act and what the act seeks to accomplish.” Concrete Co. v. Board of Commissioners, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980). “When construing an ambiguous criminal statute, we must apply the rule of lenity, which requires us to strictly construe the statute in favor of the defendant. ‘However, this [rule] does not require that words be given their narrowest or most strained possible meaning. A criminal statute is still construed utilizing ‘common sense’ and legislative intent.' ” State v. Conway, 194 N.C.App. 73, 79, 669 S.E.2d 40, 44 (2008) (citing State v. Hinton, 361 N.C. 207, 211, 639 S.E.2d 437, 440 (2007) (internal quotation omitted) and quoting State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005)), disc. rev. denied, 363 N.C. 132, 673 S.E.2d 665 (2009). “Questions of statutory interpretation are questions of law, reviewed de novo on appeal.” State v. West, 202 N.C.App. 479, 486, 689 S.E.2d 216, 221 (2010) (citing Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554 S.E.2d 331, 332 (2001), cert. denied, 535 U.S. 971, 122 S.Ct. 1438, 152 L.Ed.2d 381 (2002)).

The issue raised by Juvenile's appeal is, at bottom, a definitional one. Although the parties appear to agree that an airsoft rifle of the type at issue here is not a “firearm” ³ or a “pistol,” they disagree sharply about whether it is a “gun.” Thus, our inquiry must, necessarily, focus on whether the airsoft rifle involved in the incident that led to Juvenile's adjudication as a delinquent is or is not a “gun.”

The term “gun” is not defined in N.C. Gen.Stat. § 14–34 or in any other statutory provision that is directly or indirectly applicable to N.C. Gen.Stat. § 14–34. In addition, the parties have not cited any prior decision of the Supreme Court or this Court adopting any particular definition for use in construing N.C. Gen.Stat. § 14–34. Although the parties have expended substantial energy discussing the wording of various other statutory provisions, none of them either resolve the definitional issue presented for our consideration in this case or shed much light on its proper resolution. ⁴ As a result, we are forced, of necessity, to utilize general principles of statutory construction in order to determine whether the device utilized by Juvenile in this case was or was not a “gun.”

“Nothing else appearing, the legislature is presumed to have used the words of a statute to convey their natural and ordinary meaning.” Wood v. Stevens & Co., 297 N.C. 636, 643, 256 S.E.2d 692, 697 (1979) (citing In re Trucking Co., 281 N.C. 242, 252, 188 S.E.2d 452, 458 (1972) and State v. Wiggins, 272 N.C. 147, 153, 158 S.E.2d...