IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-400
Filed: 2 January 2018
Mecklenburg County, No. 14 JB 363
IN THE MATTER OF:
J.B.
Appeal by juvenile from orders entered 16 August 2016 by Judge David H.
Strickland in Mecklenburg County District Court. Heard in the Court of Appeals 16
October 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Brent D.
Kiziah, for the State.
Geeta N. Kapur, for juvenile-appellant.
CALABRIA, Judge.
Where the juvenile conceded the fact that the school was an entity capable of
owning property, and the State presented evidence that the school in fact owned the
damaged property, the trial court did not err in denying the juvenile’s motion to
dismiss. Where the 10-day detention to which the trial court sentenced the juvenile,
as a Level 2 offender, was for a period of confinement beyond the limits of the statute
pursuant to which the juvenile was sentenced, the trial court erred in its sentence.
Further, where the trial court failed to sentence the juvenile, as a Level 2 offender,
to an intermediate disposition as mandated by N.C. Gen. Stat. § 7B-2508(d), the trial
IN RE: J.B.
Opinion of the Court
court erred in violation of a statutory mandate. We affirm in part, but remand for
resentencing.
I. Factual and Procedural Background
On 24 March 2016, J.B. (“the juvenile”) 1, a twelve-year-old student, was in a
classroom in Lincoln Heights Academy in Charlotte, North Carolina. During the
class, the juvenile became upset and agitated, and pushed a number of things
including, inter alia, a computer and Hewlett Packer printer from the teacher’s desk
onto the floor. The computer was not damaged but the printer was damaged, and
eventually replaced.
On 3 June 2016, a juvenile petition for delinquency was filed, alleging that the
juvenile had committed the offense of injury to personal property by “damag[ing] a
printer and computer after pushing it off the teachers [sic] desk[.]” During the
subsequent proceeding, at the close of the State’s evidence, the juvenile moved to
dismiss the petition. This motion was denied. The juvenile presented no evidence.
On 16 August 2016, the juvenile was found liable for a class 2 misdemeanor,
injury to personal property, and adjudicated delinquent. The trial court considered
the juvenile’s prior misdemeanor adjudications, and that same day, entered a
disposition order, sentencing the juvenile as a Level 2 offender and ordering the
1 This pseudonym is used to protect the privacy of the juvenile and for ease of reading.
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IN RE: J.B.
Opinion of the Court
juvenile to serve 10 days’ detention in the custody of the Sheriff of Mecklenburg
County.
From the adjudication and disposition orders, the juvenile appeals.
II. Motion to Dismiss
In his first argument, the juvenile contends that the trial court erred in
denying his motion to dismiss. We disagree.
A. Standard of Review
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62,
650 S.E.2d 29, 33 (2007).
“ ‘Upon defendant’s motion for dismissal, the question for the Court is whether
there is substantial evidence (1) of each essential element of the offense charged, or
of a lesser offense included therein, and (2) of defendant’s being the perpetrator of
such offense. If so, the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373,
378,
526 S.E.2d 451, 455 (quoting State v. Barnes,
334 N.C. 67, 75,
430 S.E.2d 914,
918 (1993)), cert. denied,
531 U.S. 890,
148 L. Ed. 2d 150 (2000). “In reviewing
challenges to the sufficiency of evidence, we must view the evidence in the light most
favorable to the State, giving the State the benefit of all reasonable inferences.” Id.
at 378-79,
526 S.E.2d at 455.
B. Analysis
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IN RE: J.B.
Opinion of the Court
At trial, the State presented only one witness, Star Kelly (“Kelly”), a “teacher-
assistant” at Lincoln Heights Academy, who was present in the classroom during the
juvenile’s outburst. At the close of the State’s evidence, the juvenile moved to dismiss.
Specifically, the motion to dismiss alleged that (1) there was no evidence presented
that the damage caused by the juvenile exceeded $200, and (2) there was no evidence
that the owner of the property was the Charlotte-Mecklenburg Board of Education.
In response to the juvenile’s motion, the State first noted that “the value of the
damage that was allegedly done here, that is not actually an element of the offense.”
The State next noted, with respect to ownership of the printer:
[W]hat we do have is a witness who testified in her six
years at Lincoln Heights. She has knowledge that these
printers are provided to the teachers. There’s one in every
single classroom. She testified that while it was not hers,
she spoke – I’m sorry, let me back up -- she testified that
this was not hers; that it belonged to CMS and is provided
to each teacher for every classroom, and that when this
printer was damaged, she was provided a second one from
someone at Lincoln Heights for CMS.
So I think it’s sufficiently clear, Your Honor, as an
employee of CMS that this printer belongs to that school,
and we have produced sufficient evidence to surpass the
motion to dismiss stage.
The trial court then denied the motion to dismiss.
On appeal, the juvenile contends that this was error. Specifically, the juvenile
argues that the petition failed to allege that the school was an entity capable of
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IN RE: J.B.
Opinion of the Court
owning property, and that the evidence at trial did not prove who owned the damaged
printer.
First, the juvenile contends that the petition failed to allege that the school
was an entity capable of owning property.
“To be sufficient, an indictment for larceny must allege the
owner or person in lawful possession of the stolen
property.” State v. Downing, 313 N.C. 164, 166,
326 S.E.2d
256, 258 (1985). If the entity named in the indictment is
not a person, it must be alleged “that the victim was a legal
entity capable of owning property[.]” State v. Woody, 132
N.C. App. 788, 790,
513 S.E.2d 801, 803 (1999). “An
indictment that insufficiently alleges the identity of the
victim is fatally defective and cannot support conviction of
either a misdemeanor or a felony.” Id.
State v. Phillips,
162 N.C. App. 719, 720-21,
592 S.E.2d 272, 273 (2004).
The juvenile contends that the petition in the instant case identified the owner
of the damaged property as “Charlotte Mecklenburg Board of Education[.]” The
juvenile contends that, pursuant to statute, the owner should instead have been
identified as “The Charlotte-Mecklenburg County Board of Education,” and that the
failure to identify the Board as such was fatal to the action. See N.C. Gen. Stat. §
115C-40 (2015).
Unfortunately, the juvenile has already acknowledged that the Board of
Education was properly identified as a corporate body that can own property. At
trial, during the motion to dismiss, counsel made the following observation:
Secondly, the petition alleges that the owner of the
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IN RE: J.B.
Opinion of the Court
property was the Charlotte-Mecklenburg Board of
Education. That is a body corporate under North Carolina
Education statutes. So, therefore, it is an entity capable of
owning property.
(Emphasis added.) Counsel later observed:
One of the elements of damage to property is that the State
has to appropriately allege the corporate body or natural
person that can own the property. They correctly alleged
that here, . . .
(Emphasis added.) It is clear, then, that the juvenile has already acknowledged that
the Board was correctly identified as a body capable of owning property.
Nor did the juvenile actually dispute this point at trial. The argument with
respect to the motion to dismiss concerned (1) the value of the damage, and (2) the
fact that there was no proof that the Board of Education owned the damaged property.
At trial, the juvenile failed to raise an argument that the Board was not an entity
capable of owning property, and in fact readily conceded the point. A contention not
raised at the trial court may not generally be raised for the first time on appeal. See
N.C.R. App. P. 10(a)(1) (“In order to preserve an issue for appellate review, a party
must have presented to the trial court a timely request, objection, or motion, . . .”).
Since the juvenile did not raise this argument at trial, and in fact conceded the point,
we hold that this argument is not properly before us.
Next, the juvenile contends that the State presented insufficient evidence as
to the identity of the owner of the damaged property. As the State noted, however,
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IN RE: J.B.
Opinion of the Court
Kelly testified that the printer was owned by the school. She said that “Ms. Lucie,
[the] secretary downstairs” brought the printer to her. She said that computers and
printers are “supplied by the school.”
The juvenile contends that the State should have presented more concrete
evidence of the school’s ownership of the printer. However, that is an argument that
goes to the weight and credibility of the evidence. On our review, we are instead
required to “view the evidence in the light most favorable to the State, giving the
State the benefit of all reasonable inferences.” Fritsch, 351 N.C. at 378-79,
526 S.E.2d
at 455. Viewing the evidence in the light most favorable to the State, it is clear that
the school supplied computers and printers to the teachers, and that those computers
and printers were therefore the property of the school, and by extension the Board of
Education. Accordingly, giving the State the benefit of all reasonable inferences, we
hold that the State presented evidence that the school owned the damaged property.
The trial court did not err in denying the juvenile’s motion to dismiss.
III. Sentencing
In his second argument, the juvenile contends that the trial court erred in
sentencing him to 10 days’ confinement. We agree in part.
A. Standard of Review
“On appeal, we will not disturb a trial court’s ruling regarding a juvenile’s
disposition absent an abuse of discretion, which occurs when the trial court’s ruling
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IN RE: J.B.
Opinion of the Court
is so arbitrary that it could not have been the result of a reasoned decision.” In re
J.B., 172 N.C. App. 747, 751,
616 S.E.2d 385, 387, aff'd per curiam,
360 N.C. 165,
622
S.E.2d 495 (2005) (citation and quotation marks omitted).
“Issues of statutory construction are questions of law, reviewed de novo on
appeal. Under a de novo review, the Court considers the matter anew and freely
substitutes its own judgment for that of the lower tribunal.” State v. Coakley, 238
N.C. App. 480, 492,
767 S.E.2d 418, 426 (2014) (citation and quotation marks
omitted).
B. Analysis
The trial court found the juvenile to be a Level 2 offender, and sentenced him
to 10 days in the custody of the Sheriff of Mecklenburg County. On appeal, the
juvenile contends that this was an error of law, in that a statutory mandate limited
the juvenile’s detention. Specifically, the juvenile cites N.C. Gen. Stat. § 7B-2506(12)
(2015), which states that “[c]onfinement shall be limited to not more than five 24-
hour periods, the timing of which is determined by the court in its discretion.” The
juvenile contends that this statutory limit was exceeded by the trial court, and that
this constituted an error of law.
We hold that the juvenile is correct in part. The disposition authorized by N.C.
Gen. Stat. § 7B-2506(12) is explicit, and the 10-day disposition imposed by the trial
court exceeds the five days authorized by that subsection. We note, however, that
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IN RE: J.B.
Opinion of the Court
N.C. Gen. Stat. § 7B-2506, which lists dispositional alternatives for delinquent
juveniles, specifically provides that its sentencing alternatives must be used “in
accordance with the dispositional structure set forth in G.S. 7B-2508[.]” N.C. Gen.
Stat. § 7B-2506. Pursuant to the language of N.C. Gen. Stat. § 7B-2506, these two
provisions must be read together.
The offense at issue, destruction of personal property, was classified as
“minor.” The juvenile’s history of delinquency was classified as “high.”2 Pursuant to
N.C. Gen. Stat. § 7B-2508(f) (2015), the juvenile could only be sentenced to a Level 2
disposition. N.C. Gen. Stat. § 7B-2508 further provides that, where a juvenile is
subject to a Level 2 disposition, the trial court may order “any of the dispositional
alternatives contained in subdivisions (1) through (23) of G.S. 7B-2506, but shall
provide for at least one of the intermediate dispositions authorized in subdivisions
(13) through (23) of G.S. 7B-2506.” N.C. Gen. Stat. § 7B-2508(d) (emphasis added).
As the State acknowledges, the trial court used an outdated preprinted
disposition order form. The form used did not include a dispositional option citing
N.C. Gen. Stat. § 7B-2506(20), which authorizes a confinement period of up to
fourteen days. The court checked a box stating “Intermittent Confinement [N.C.G.S.
2 While the trial court’s juvenile disposition order lists the juvenile’s delinquency history as
“low,” the delinquency history worksheet, which tabulates the juvenile’s prior history points, correctly
notes that his history is “high.” We hold that the trial court’s juvenile disposition order, which lists
the juvenile’s history as “low,” constituted a mere clerical error, and rely on the worksheet, which is
correctly supported.
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IN RE: J.B.
Opinion of the Court
§ 7B-2506(12)],” and added the handwritten notation “10 days detention.”
Notwithstanding the fact that the ten-day detention exceeds the intermittent
confinement authorized by N.C. Gen. Stat. § 7B-2506(12), the trial court was required
to order another (or an additional) disposition. Namely, the trial court was required
to impose at least one of the dispositional alternatives found in N.C. Gen. Stat. §§ 7B-
2506(13)-(23). Its failure to do so constituted a violation of the statutory mandate of
N.C. Gen. Stat. § 7B-2508(d), and was reversible error. See In re Z.T.B., 170 N.C.
App. 564, 569,
613 S.E.2d 298, 300 (2005) (holding that “[t]he use of the word ‘shall’
by our Legislature has been held by this Court to be a mandate, and the failure to
comply with this mandate constitutes reversible error”).
Accordingly, the trial court erred as a matter of law in sentencing the juvenile
to ten days of detention pursuant to N.C. Gen. Stat. § 7B-2506(12), and we remand
for resentencing. On remand, while the trial court may require that the juvenile
serve as many as five days of intermittent confinement under N.C. Gen. Stat. § 7B-
2506(12), it must provide at least one of the mandatory dispositional alternatives
found in N.C. Gen. Stat. §§ 7B-2506(13)-(23), and explicitly identify the statutory
basis or bases for the sentence imposed.
AFFIRMED IN PART, REMANDED IN PART.
Chief Judge McGEE concurs.
Judge DILLON concurs in part and dissents in part in separate opinion.
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No. COA17-400 – IN RE J.B.
DILLON, Judge, concurring in part and dissenting in part.
I concur in the majority’s conclusion to reject the juvenile’s argument
concerning the proof of ownership of the property which was allegedly damaged by
the juvenile.
With respect to the juvenile’s argument concerning the State’s failure to plead
in the petition that the owner was an entity capable of owning property, I recognize
that for purposes of an indictment, such a mistake could be raised for the first time
on appeal. However, I conclude that the owner’s capability of owning property does
not need have been pleaded with the same specificity as in an indictment. See State
v. Jones, ___ N.C. App. ___, ___, 805 S.E.2d 701, 705 (2017) (holding that a citation
for a misdemeanor need not plead each element with the same specificity as required
for an indictment).
I dissent, however, from the majority’s conclusion that the matter needs to be
remanded for resentencing. Here, the trial court sentenced the juvenile to an
intermittent confinement. Under Section 7B-2506 of the North Carolina General
Statutes, a confinement of up to 5 days is considered a level 1 disposition under
subsection (12), and a confinement of up to 14 days is considered a level 2 disposition
under subsection (20). N.C. Gen. Stat. § 7B-2506 (2015).
Here, as the majority points out, the trial court properly determined that the
juvenile was a level 2 offender. I conclude that the trial court in the present case
IN RE J.B.
DILLON, J., concurring in part and dissenting in part
acted properly in sentencing the juvenile to a level 2 disposition by sentencing the
juvenile to 10 days of intermittent confinement.
The “error” cited by the majority is, in reality, simply clerical. Specifically, the
version of the pre-printed AOC judgment form used by the trial court contains only
one place where the judge can select an intermittent confinement as a disposition:
Intermittent Confinement. [N.C.G.S. 7B-2506(12).] The juvenile be
confined on an intermittent basis in an approved detention facility as
follows: _____________________.
Here, the trial judge checked the box and wrote in “10 days detention,” an appropriate
level 2 disposition for a level 2 offender under G.S. 7B-2506(20). The “error,” though,
is that the form cites to subsection (12), which provides for the level 1 intermittent
confinement disposition. The pre-printed form does not expressly cite to subsection
(20) of G.S. 7B-2506.
I conclude that the trial judge’s intent to sentence the juvenile to a 10-day
confinement, an appropriate disposition for a level 2 offender, is clear: the judge
wrote in “10 days detention.” Of course, it would be better if the pre-printed form
cited to both G.S. 7B-2506(12) and to G.S. 7B-2506(20). My vote is to affirm the order
of the trial court but remand that matter to fix the clerical error to delete the reference
to subsection (12) of G.S. 7B-2506 on the pre-printed form.
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