In re M.J.G., 2014 N.C. App. LEXIS 611
Failure of your client’s parents to be heard prior to a disposition being entered is harmless error if they do not object and a witness may testify that a juvenile has looked at them with defiance.
In re M.J.G., 2014 N.C. App. LEXIS 611 In May 2013 two petitions were filed alleging misdemeanor assault and disorderly conduct related to circumstances that occurred at a fundraiser volleyball game held in the gymnasium of an elementary school. The juvenile was seen sitting next to two boys that were assumed to be “getting ready to fight” by having their ‘fists clenched.” A teacher testified that when the juvenile was asked to come off the bleachers the juvenile became angry and stormed off the bleachers and “right over [a parent]…and pushed out the gym door.” The teacher testified that the juvenile began shouting, cursing and put his finger less than an inch away from the teacher’s face. The aforementioned parent also testified about her contact with the juvenile stating that “she had to take three or four steps back to keep from falling” as he came off the bleachers. The parent also testified that “the look on [the juvenile’s] face was very defiant.” The school resource officer testified that he “had to put [his] hands on [the juvenile] to remove him from the hallway.” The juvenile was adjudicated delinquent of both offenses and placed on probation for 12 months. The juvenile appealed first arguing that the trial court erred by failing to find that he was delinquent of the offense of misdemeanor assault beyond a reasonable doubt. Relying on In re J.V.J., 209 N.C. App.737, 707 S.E.2d 636 (2011), the juvenile argues that the adjudication order does not include the conclusion of law that he committed assault beyond a reasonable doubt nor does it include findings of fact inferring such a conclusion. The Court found that in J.V.J., the trial court failed to address any of the allegations set out in the juvenile petition. It even failed to summarily aver that “the allegations in the petition [had] been proved.” In the present case, however, the Court determined that the “Juvenile Adjudication Order” stated that the “[trial] Court concludes as a matter of law, that in regard to the allegations in the petition(s) before the Court” the juvenile is delinquent. Also, the petition for misdemeanor assault alleged that juvenile committed simple assault by “forcefully hitting the victim in her shoulder, breast, and chest area with his shoulder, causing the victim to move back a few steps.” Accordingly, the Court rejected the juvenile’s argument that the trial court failed to find that he had committed misdemeanor assault beyond a reasonable doubt.
Next, the juvenile asserted that the trial court erroneously allowed the parent to testify that the juvenile’s expression was ‘defiant’. State v. Sanders, 295 N.C. 361, 245 S.E.2d 674 (1978) states that “a witness’s opinion of another person’s intention on a particular occasion is generally held to be inadmissible.” Here, however, the Court believed that the parent’s testimony was more appropriately characterized as describing the juvenile’s demeanor. The Court cited State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991), which provides that “opinion evidence as to the demeanor of a criminal defendant is admissible into evidence. Further, State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970) states that “the appearance of a man, his actions, his expression, his conversation – a series of things – go to make up the mental picture in the mind of the witness which leads to a knowledge which is as certain, and as much a matter of fact, as if he testified, from evidence presented to his eyes, to the color of a person’s hair, or any other physical fact of like nature.” The Court found that the parent’s testimony that the juvenile’s “look on his face” was ‘very defiant” related to her perception of the juvenile shortly after the alleged incident. Because the testimony stemmed from the parent’s personal experience combined with her observation of the juvenile, it was admissible to shed light upon the circumstances surrounding the alleged incident, and thus, was relevant and admissible. Therefore, the Court rejected the argument.
Alternatively, the juvenile contended that the trial court should have granted his motion to dismiss because there was no other evidence to indicate that his act was intentional. The Court found that argument unpersuasive, holding that a thorough review of the record demonstrated that the parent’s testimony was not the only evidence to establish that the juvenile acted with intent. The Court further stated that in a juvenile adjudication hearing, “the [trial] court is empowered to assign weight to the evidence presented at the trial as it deems appropriate. Reviewing the evidence in the light most favorable to the state, the Court held that there was sufficient evidence for the trial court to determine that the juvenile’s actions were intentional.
Next, the juvenile argued that his actions did not amount to disorderly conduct because there was insufficient evidence that the his actions amounted to a disturbance of the peace, order, or discipline at the school when no students, classes, or programs were in any way affected and his actions minimally affected the staff’s activities. The juvenile cites In re Eller, 331 N.C. 714, 417 S.E.2d 479 (1992) as providing guidance for identifying behavior which constitutes a violation of N.C.G.S. § 14-288.4(a)(6). In Eller, the N.C. Supreme Court did not find a substantial interference where the “students were only modestly interrupted from their work and returned to their lesson upon being instructed to do so by their teacher.” The Eller court cited two cases to support its conclusion, including State v. Midgett, 8 N.C. App. 230, 174 S.E.2d 124 (1970). In Midgett the Court of Appeals affirmed the denial of a motion for nonsuit when student-defendants entered a school office with the expressed intention of interrupting the school day. Because of the student-defendants’ actions, the secretary, the principal and another teacher were kept from performing their official duties and the school was dismissed early. As such, the Court held that there was ample evidence to support all of the elements of disorderly conduct.
In the present case, the juvenile argued that his circumstances are more similar to those found in Eller and distinguishable from the facts found in Midgett. This Court disagreed, finding that the circumstances of the present case comparable to the facts found in Midgett. The juvenile’s conduct merited intervention by several teachers, the assistant principal, as well as the school resource officer. Therefore, the Court found that the trial court did not err by denying the juvenile’s motion to dismiss the charge of disorderly conduct.
In his final argument, the juvenile contended that the several errors occurred at his disposition hearing. Specifically, he asserted that the fact that his dispositional hearing was twelve minutes long thus resulting in a “sham” hearing. The juvenile did not cite any authority to support the assumption. Furthermore, the Court found the assertion unpersuasive as the trial court judge did not sign the disposition order until two days following the day of the hearing. Finally, the juvenile argued that the trial court erred by allowing his mother to be heard only subsequent to the trial court entering the disposition. The Court disagreed holding that even if the trial court decided the terms of the juvenile’s disposition prior to allowing the juvenile’s mother to be heard, the error would be harmless based on the fact that the juvenile’s mother did not object to a condition of attending a court ordered class but effectively agreed with the trial court when she was heard. Accordingly, the trial court adjudication and disposition orders were affirmed. http://appellate.nccourts.org/opinions/?c=2&pdf=31301