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VIEWS: 30 PAGES: 38

									No. COA08-893                                         District 26

                    NORTH CAROLINA COURT OF APPEALS

                *********************************

IN THE MATTER OF:                )
W.W., a Juvenile                 )    From Mecklenburg County
                                 )    08 J 08
                                 )
                                 )

                **********************************

                      JUVENILE-APPELLANT’S BRIEF

                **********************************
                         TABLE OF CONTENTS



TABLE OF CASES AND AUTHORITIES. . . . . . . . . . . . . . . . .

3

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . .

5

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . .

6

GROUNDS FOR APPELLATE REVIEW. . . . . . . . . . . . . . . . . .

6

STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . .

7

ARGUMENTS

I. The trial court erred by adjudicating defendant delinquent
where the juvenile petitions were approved for filing by the
court counselor within 15 days of the complaint being received,
but the petitions were not filed within the 15 days and there is
no indication that the chief juvenile court counselor authorized
a 15-day extension, in violation of N.C. Gen. Stat. Section 7B-
1703 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.8

II.   The trial court erred in admitting defendant’s statements
that he was present at McClintock Middle School at the time in
question on the ground that the statements resulted from the
custodial interrogation of the defendant in violation of the
defendant’s Fifth, Sixth, and Fourteenth Amendment rights under
the United States Constitution . . . . . . . . . . . . . . . .
12

III. The trial court erred by denying the defendant’s motion to
dismiss on the charge of disorderly conduct at school on the
ground that the State presented insufficient evidence to support
the charge and further erred by adjudicating the defendant
delinquent on the ground that there was reasonable doubt from
the evidence presented . . . . . . . . . . . . . . . . . . . . .
. 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . .

24

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . .

25

APPENDIX
                                4


                 TABLE OF CASES AND AUTHORITIES

Cases


Burgess v. Gibbs,
     262 N.C. 462, 137 S.E.2d 806 (1964) . . . . . . . . . . .8

In Re Eller,
     331 N.C. 714, 417 S.E.2d 479   . . . . . . . . . . . . . .20

In Re Grubb,
     103 N.C. App. 452, 405 S.E.2d 797 (1991). . . . . . . . .21

In Re Of J.A.P. and I.M.P.,
     N.C. App. __, 659 S.E.2d 14 (2008). . . . . . . . . . . .8

In Re K.W.,
 __ N.C. App. __, __ S.E.2d __ (2008)   . . . . . . . . . . . .10

In Re T.R.P.,
     360 N.C. 588, 636 S.E.2d 787 (2006) . . . . . . . . . . .9

Mendenhall v. United States,
     446 U.S. 544 (1980) . . . . . . . . . . . . . . . . . . .18

Miranda v. Arizona,
     384 U.S. 436 (1966) . . . . . . . . . . . . . . . . . . .13

State v. Buchanan,
     353 N.C. 332, 543 S.E.2d 823 (2001) . . . . . . . . . . .13

State v. Crawford,
     344 N.C. 65, 472 S.E.2d 920 (1996). . . . . . . . . . . .20

State v. Gaines,
     345 N.C. 647, 483 S.E.2d 396 (1997) . . . . . . . . . . .15

State v. Garcia,
     358 N.C. 382, 597 S.E.2d 724 (2004) . . . . . . . . . . .14

State v. Jones,
     172 N.C. App. 161, 615 S.E.2d 896 (2005). . . . . . . . .8
                                5


State v. Midgett,
     8 N.C. App. 230, 174 S.E.2d 124 (1970). . . . . . . . . .21

In re Phillips,
     128 N.C. App. 732, 497 S.E.2d 292 (1998)   . . . . . . . .16

State v. Wiggins,
     272 N.C. 147, 158 S.E.2d 37 (1967). . . . . . . . . . . .21

In re W.R.,
     179 N.C. App. 642, 645, 634 S.E.2d 923, 926 (2006). . . .16


Statutes

N.C. Gen. Stat. 7B-1703 . . . . . . . . . . . . . . . . . 8,9,10

N.C. Gen. Stat. 7B-1500 . . . . . . . . . . . . . . . . . . . 11

N.C. Gen. Stat. 7B-2101 . . . . . . . . . . . . . . . . . . . 13

N.C. Gen. Stat. 14-288.4. . . . . . . . . . . . . . . . . . . 21

N.C. Gen. Stat. 7B-2409 . . . . . . . . . . . . . . . . . . . 24
                                     6




No.   COA08-893                                         District 26

                    NORTH CAROLINA COURT OF APPEALS

                  *********************************

IN THE MATTER OF:                )
W.W., a Juvenile                 )       From Mecklenburg County
                                 )       08 J 08
                                 )
                                 )

                  **********************************

                      JUVENILE-APPELLANT’S BRIEF

                  **********************************

                          QUESTIONS PRESENTED
                                7


I. Whether the trial court erred by adjudicating
defendant delinquent where the juvenile petitions were
approved for filing by the court counselor within 15
days of the complaint being received, but the
petitions were not filed within the 15 days and there
is no indication that the chief juvenile court
counselor authorized a 15-day extension, in violation
of N.C. Gen. Stat. 7B-1703.

II. Whether the trial court erred in admitting
defendant’s statements that he was present at
McClintock Middle School at the time in question on
the ground that the statements resulted from the
custodial interrogation of the defendant in violation
of the defendant’s Fifth, Sixth, and Fourteenth
Amendment rights under the United States Constitution.

III. Whether the trial court erred by denying the
defendant’s motion to dismiss on the charge of
disorderly conduct at school on the ground that the
State presented insufficient evidence to support the
charge and further erred by adjudicating the defendant
delinquent on the ground that there was reasonable
doubt from the evidence presented.
                                     8




                           STATEMENT OF THE CASE

    On 3 January 2008, the State filed a juvenile petition

alleging that the defendant, W.W., was a delinquent child for

having engaged in disorderly conduct at school, R. p. 7 , and

two additional petitions alleging him delinquent for simple

assault.    R. p. 9, 11.    Both offenses are Class 2 misdemeanors.

Following a trial in Mecklenburg County Juvenile District Court,

the Honorable Hugh B. Lewis entered an order adjudicating W.W.

delinquent for disorderly conduct at school and simple assault.

R. p. 24.    That same day, Judge Lewis entered a dispositional

order finding the juvenile to be a Level 1 offender and placing

him on probation for a period of six months.       The order further

required the juvenile to comply with a seven o’clock curfew,

cooperate with any recommended treatment plans, complete the

Victim Offender Program, perform 40 hours of community service,

refrain from entering the property of McClintock Middle School

unless there for a sanctioned practice or other event, and stay

away from D.M., the prosecuting witness.      R. p. 26.

    W.W., through his court-appointed attorney, gave timely

notice of appeal.    R. p. 46
                                   9


          STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

    The juvenile appeals from the adjudication and

dispositional order entered 15 April 2008, pursuant to N.C. Gen.

Stat. 7B-2602.

                      STATEMENT OF THE FACTS

    On 13 November 2007, W.W., a fifteen-year-old high school

student from Charlotte, was summoned from his classroom by a

school official and taken to the school resource officer’s

office, where he was questioned by officers about an assault

that allegedly had occurred on 6 November 2007 in the cafeteria

of McClintock Middle School.     T. P. 39-40.      The juvenile was not

advised that he had any rights, nor was he given a hall pass to

return to his classroom.     T. P. 40-42.     During the interview,

the juvenile told the officers that he was present at the site

of the altercation in question.        T. P. 30.

    The altercation under investigation involved D.M., a

fifteen-year-old boy who attends McClintock Middle School.        T.

P. 5.   D.M. testified that he was in the cafeteria hours after

school had ended and that there was a large group of people in

the cafeteria.   T. P. 10.   He stated that a group of seven boys

approached him and became aggressive.       T. P. 11-12.    He

testified that W.W., whom he had never seen before, stepped
                                   10


forward and pushed him.     D.M. characterized the push as “[l]ike

a shove basically.     Like a little tap type.”    T. P. 12.   D.M.

noted that the push did not cause him to fall or lose his

balance.   T. P. 12.    D.M. testified that W.W. stated, “What you

want?”   T. P. 12.   According to D.M., W.W. then turned and

walked away.   T. P. 13.

      D.M. reported the incident to a police officer and the

officer showed D.M. a yearbook in which D.M. identified the boy

who pushed him as being W.W., although he admitted that he had

never seen W.W. prior to the encounter in the cafeteria.        T. P.

15.



                               ARGUMENT 1

THE TRIAL COURT ERRED BY ADJUDICATING DEFENDANT DELINQUENT WHERE
THE JUVENILE PETITIONS WERE APPROVED FOR FILING BY THE COURT
COUNSELOR WITHIN 15 DAYS OF THE COMPLAINT BEING RECEIVED, BUT
THE PETITIONS WERE NOT FILED WITHIN THE 15 DAYS AND THERE IS NO
INDICATION THAT THE CHIEF JUVENILE COURT COUNSELOR AUTHORIZED A
15-DAY EXTENSION, IN VIOLATION OF N.C. GEN. STAT. 7B-1703.


Assignment of Error 4, R. p. 8, 10, 12



                           STANDARD OF REVIEW

      “The question of subject matter jurisdiction may properly

be raised for the first time on appeal.”        State v. Jones, 172
                                 11


N.C. App. 161, 163, 615 S.E.2d 896, 897 (2005)(citation and

quotation marks omitted).    “In reviewing a question of subject

matter jurisdiction, our standard of review is de novo.”     In Re

Of J.A.P. and I.M.P., __ N.C. App. ___,___, 659 S.E.2d 14, 16

(2008).    “A universal principal as old as the law is that the

proceedings of a court without jurisdiction of the subject

matter are a nullity.”    Burgess v. Gibbs, 262 N.C. 462, 465, 137

S.E.2d 806, 808 (1964).    “Jurisdiction rests upon the law and

the law alone.    It is never dependent upon the conduct of the

parties.    Subject matter jurisdiction cannot be conferred upon a

court by consent, waiver or estoppel, and therefore failure to .

. . object to the jurisdiction is immaterial.”    In Re T.R.P.,

360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006)(citations and

quotation marks omitted).

                              ARGUMENT

    North Carolina General Statutes, Section 7B-1703, provides

a 15-day window in which a juvenile court counselor may file a

juvenile petition after receiving a juvenile complaint.    “The

juvenile court counselor shall decide within this time period

whether a complaint shall be filed as a juvenile petition.”       Id.

The statute allows for the chief court counselor to approve an

extension for up to 15 additional days.
                              12


[I]f the juvenile court counselor determines
that a complaint should be filed as a
petition,   the  counselor  shall  file  the
petition as soon as practicable, but in any
event within 15 days after the complaint is
received, with an extension for a maximum of
15 additional days at the discretion of the
chief court counselor. The juvenile court
counselor shall assist the complainant when
necessary with the preparation and filing of
the petition, shall include on it the date
and the words "Approved for Filing", shall
sign it, and shall transmit it to the clerk
of superior court.
                                13



Id.

      This Court recently determined, in a case identical to the

present case, that where the record contains no indication that

the chief court counselor approved a 15-day extension, the

juvenile court has no subject matter jurisdiction over the

action.   In re K.W.,___N.C. App.     ,      ,S.E.2d,   (2008), the

trial court acted upon juvenile petitions filed 16 days after

the receipt of the complaint.   The Court stated that although

the statute allows a 15-day extension at the discretion of the

chief court counselor, the exercise of that discretion must

affirmatively appear in the record.       Id.

      In K.W., the State contended that the petitions were timely

filed since they were filed within 30 days, arguing essentially

that a 15-day extension by the chief court counselor could be

presumed.   This Court rejected that argument, stating:
                               14


The State's position would require us to
presume the chief juvenile court counselor
exercised his or her discretion to extend the
fifteen-day period mandated by the statute to
the maximum thirty-day period allowed by the
statute with no evidence to support that
presumption. Were we to adopt the State's
reading of section 7B-1703, and presume a
proper exercise of discretion without any
proof of such, and thus without any means of
determining whether that discretion has been
abused, we would eviscerate the language of
7B-1703 mandating the filing of the petition
within fifteen days of filing the complaint.
The State's interpretation effectively would
extend the fifteen-day mandate to thirty
days, without any means to check the chief
counselor's discretion, in contravention of
the express language of 7B-1703.
                                15



Id. at ___,   S.E.2d at ___.

    The juvenile petitions at issue in this case were received

on 4 December 2007 and approved for filing on 17 December 2007.

R. p. 8, 10, 12.   However, the petitions were not verified or

filed before 2 January 2008.   R. p. 8, 10, 12.   Although the

file stamp is so faint as to be illegible in the printed record

on appeal, it is clear from the verification page that no

petition was issued prior to 2 January 2008.   (In fact, the

petitions were filed on 3 January 2008).    In addition, the case

was given a 2008 docket number, indicating that the petitions

were filed after 1 January 2008, making them untimely absent

evidence of an extension authorized by the chief court counselor

given the intake date of 4 December 2007.

    In announcing its decision in K.W., this Court noted that

one of the Juvenile Code’s purposes is to “provide uniform

procedures that assure fairness and equity; that protect the

constitutional rights of juveniles, parents, and victims; and

that encourage the court and others involved with juvenile

offenders to proceed with all possible speed in making and

implementing determinations required by this Subchapter.”      Id.

at ___, ___ S.E.2d. at ___(citing N.C. Gen. Stat. Section 7B-

1500(4)(2008)).
                                  16


       The procedural history of this case presents a more

compelling case for vacating the trial court’s orders than in

K.W.   Here, there can be no presumption that the chief court

counselor exercised discretion in granting 15 additional days,

given that the record shows the petitions were approved for

filing within 13 days after receipt of the complaint.     R. p. 8,

10, 12.    Thus, the court counselor had ample time in which to

evaluate and file the petitions in the first 15 days, but failed

to do so.    This delay cannot be attributed to a chief court

counselor’s failure to affirmatively document a discretionary

decision to extend the deadline for filing by 15 days.     Instead,

the record demonstrates that the court counselor simply waited

too long to file the petitions.    This defeats the Juvenile

Code’s purpose that juvenile justice be accomplished “with all

possible speed” and divests the trial court of subject matter

jurisdiction.    In light of K.W., the adjudication and

dispositional orders in this case should be vacated.



                            ARGUMENT II.

THE TRIAL COURT ERRED IN ADMITTING DEFENDANT’S STATEMENTS THAT
HE WAS PRESENT AT MCCLINTOCK MIDDLE SCHOOL AT THE TIME IN
QUESTION ON THE GROUND THAT THE STATEMENTS RESULTED FROM THE
CUSTODIAL INTERROGATION OF THE DEFENDANT IN VIOLATION OF THE
DEFENDANT’S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER
THE UNITED STATES CONSTITUTION.
                                17



Assignment of Error 1, R. p. 54, T. p. 30-58


                        STANDARD OF REVIEW


    “It is well established that the standard of review in

evaluating a trial court’s ruling on a motion to suppress is

that the trial court's findings of fact are conclusive on appeal

if supported by competent evidence, even if the evidence is

conflicting.   Additionally, the trial court's determination of

whether an interrogation is conducted while a person is in

custody involves reaching a conclusion of law, which is fully

reviewable on appeal.   The trial court's conclusions of law must

be legally correct, reflecting a correct application of

applicable legal principles to the facts found.”    State v.

Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)

(internal citations and quotation marks omitted).

                             ARGUMENT

    A person interrogated while in custody cannot have his

statements introduced against him unless he has given a knowing,

voluntary waiver of his Miranda rights.   Miranda v. Arizona, 384

U.S. 436 (1966).   The North Carolina General Assembly has

provided even more protection for juveniles subjected to

custodial interrogation.   Before a juvenile in custody can be
                                18


questioned, the juvenile must be advised that he has the right

to remain silent, that any statement he makes may be used

against him, that he has the right to have a parent present

during the interrogation, and that he has the right to an

attorney.   N.C. Gen. Stat. Section 7B-2101.

    Specifically, the juvenile-defendant under the facts

presented in this case was never advised by his interrogators

that he had a Fifth Amendment right to avoid self-incrimination

or a Sixth Amendment right to counsel, was never told that his
                               19


statements could be used against him, and was never informed

that he could have a parent present during interrogation.

Therefore, the trial court erred by admitting his statements

into evidence.
                              20


[U]nder Miranda, whether an individual is in
custody is a mixed question of law and fact.
Accordingly, we review the trial court's
findings of fact to determine whether they
are supported by competent record evidence,
and we review the trial court’s conclusions
of law for legal accuracy and to ensure that
those   conclusions    reflect   a   correct
application of [law] to the facts found. In
doing so, this Court must look first to the
circumstances surrounding the interrogation
and second to the effect those circumstances
would have on a reasonable person.
                               21



State v. Garcia, 358 N.C. 382, 391, 597 S.E.2d 724, 733 (2004)

(internal citations and quotation marks omitted).

    Here, the trial court stated its Findings of Fact as

follows:
                               22


The door was open at the beginning of the
conversation between the juvenile and the
police officer.   Later the door was closed
and the juvenile stated on the stand that it
did not matter if the door was open or
closed.    The officer told the juvenile
several times that the juvenile was not in
custody.    The juvenile was in the chair
closest to the door. The juvenile was told
that he could leave.        It was already
indicated that he was not in custody and he
did not have to talk to the officers.     The
juvenile never indicated to the officers
that he did not want to talk to the officers
or that he wanted to leave.     The interview
took seven to ten minutes.       The juvenile
says that he does not recall statements made
by the officer and does not remember what
was said that day.    The juvenile stated on
the stand that he knew he was not under
arrest at the moment of the interview.
                                23




T. P. 57-58.

    It is acknowledged that the findings of fact are supported

by competent evidence.   However, the juvenile-appellant

respectfully contends that the trial court erred in concluding

that the interrogation of the juvenile was not custodial.     While

it is true that the juvenile admitted having a hazy recollection

and stated that he knew he was not under arrest, it is clear

from the juvenile’s testimony that the juvenile remembers

specific facts and further testified that he did not feel free

to disengage from the interview.     His statement that he “knew he

was not under arrest” is clearly a product of the juvenile’s

misunderstanding of what constitutes an arrest.     “To determine

whether a person is in custody, the test is whether a reasonable

person in the suspect's position would feel free to leave.”

State v. Gaines, 345 N.C. 647, 662, 483 S.E.2d 396, 405 (1997).

Gaines featured a fact pattern similar to the one in this case,

and the Court ultimately ruled against the defendant on the

grounds that there was no custodial questioning.

    It must be conceded that some of the factors relied on by

the Gaines Court are present in the instant case.    As in Gaines,

the defendant was not handcuffed and was told that he was not
                                24


under arrest.   However, there are distinctions from Gaines, and

it should be noted that the test is one that examines each fact

pattern anew by weighing the totality of the circumstances.
                              25


To determine whether a juvenile is in
custody for these purposes, the test is
whether   a    reasonable   person in   [the
juvenile’s] position, under the totality of
the circumstances, would have believed that
he was under arrest or was restrained in his
movement to the degree associated with a
formal arrest. This is an objective test,
based upon a reasonable person standard, and
is to be applied on a case-by-case basis
considering all the facts and circumstances.
Under this test, the trial court should
consider the juvenile’s age in ruling on the
admissibility of a confession, however, the
youth of a juvenile will not preclude the
admission   of   his   inculpatory statement
absent mistreatment or coercion by the
police officers.
                                26


In re W.R., 179 N.C. App. 642, 645, 634 S.E.2d 923, 926(2006),

disc. rev. allowed, 361 N.C. 694, 653 S.E.2d 877 (2007)

(citations and quotation marks omitted). (It should be noted

that the North Carolina Supreme Court granted the State’s

petition for discretionary review and petition for writ of

supersedeas in W.R., and the case is still pending before that

Court, and it must be conceded that a reversal by the Supreme

Court would seriously undermine the juvenile’s argument here.

However, the juvenile, for the sake of preservation, brings

forth this argument and cites W.R. as an example of a similar

case recently considered by this Court.)

    This Court has previously determined that a juvenile is not

in custody if questioned at school by school officials, so long

as no police officers are present.     In re Phillips, 128 N.C.

App. 732, 497 S.E.2d 292 (1998).     However, the presence of

police officers, as in W.R. and the instant case, makes it more

likely that an interview will be deemed custodial.

    W.R. featured a fact pattern in which a fourteen-year-old

boy was questioned by school officials and a police officer for

a period of thirty minutes.   The trial court, in evaluating the

facts, stated, “Given the totality of these circumstances,      a

reasonable person standing in the place of the juvenile would
                                27


have believed that he was restrained in his movement to the

degree associated with a formal arrest.”   179 N.C. App. at 646,

634 S.E.2d at 926.   The only distinguishing factor from the

instant case is that, here, the defendant was told that he was

not under arrest.

    Nevertheless, the defendant contends that, given the

circumstances giving rise to his interrogation, a reasonable

person in his position would believe that he had no choice but

to accompany the school official and the officers and submit to

questioning.   In Gaines, the defendant also voluntarily

accompanied officers, but there the defendant made that decision

from the comfort and safety of his own home and in the presence

of his mother.   The defendant here was removed from class and

interrogated with no parents or guardians present.

    The trial court’s findings address the juvenile’s

subjective beliefs, and stress that he knew he was not under

arrest and that it didn’t matter to him whether the door was

open or closed during the interview.   But whether this

particular juvenile attached significance to the door being open

or closed is irrelevant.   As Garcia makes clear, what is

controlling is whether a “reasonable person in the suspect’s

position” would have felt as though he were free to go.     This is
                                28


purely an objective test, and the defendant contends that a

reasonable 15-year old, having been removed from class and taken

to the school resource officer’s office and questioned by

police, would not feel free to leave, particularly if, at some

point, the door was in fact closed, as happened here.

    Another finding states that the juvenile was told several

times that he was not in custody.    But “custody” is a legal

conclusion and a police officer’s statement that a situation is

“non-custodial” is meaningless if the situation is fundamentally

custodial in nature.   The definitive test is the one stated in

Garcia and rooted in Mendenhall v. United States, 446 U.S. 544

(1980): whether a reasonable person in the defendant’s position

would feel free to leave.   That the defendant was told that he

could leave certainly implies a certain voluntariness to his

actions and statements, but the effect of this statement must be

judged in context.   Any verbal assurance that the defendant was

free to leave was countered by physical signs that he was not be

free to leave.   The juvenile stated that he knew he was “not

under arrest,” but that he feared he would be arrested if he

disengaged.   Here, the juvenile misunderstands the meaning of

the word “arrest.”   But his misunderstanding cannot change the

character of the encounter from custodial to non-custodial.
                                29


Clearly, in thinking that he would be arrested if he disengaged,

the juvenile manifested a belief that, in some sense, he would

not be allowed to leave.   He contends that, in light of the

coercive nature of the interview, being conducted at school by

police officers, and with no opportunities to contact a parent

or attorney, a reasonable person similarly situated would feel

constrained.   As such, the trial court erred in concluding that

there was no custodial interrogation and thus admitting into

evidence statements by the defendant indicating that he was

present at the scene of the crime being investigated.

    The defendant further contends that admission of this

evidence was prejudicial in that it provided corroboration to

the victim’s account, and that corroboration was especially

important given that the victim identified the defendant from an

old yearbook, admitting that he had never seen the defendant

before, that the defendant was part of a crowd, and that the

encounter was brief.   Accordingly, the trial court’s judgment

should be vacated and the defendant given a new trial.



                           ARGUMENT III.
                                30


THE TRIAL COURT ERRED BY DENYING THE DEFENDANT’S MOTIONS TO
DISMISS ON THE GROUND THAT THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT AN ADJUDICATION ON THE DISORDERLY CONDUCT CHARGE AND
FURTHER ERRED BY ADJUDICATING THE DEFENDANT DELINQUENT ON THE
GROUND THAT THERE WAS REASONABLE DOUBT FROM THE EVIDENCE
PRESENTED.


Assignment of Error 4, 6, R. p. 54-55, T. p. 68



                        STANDARD OF REVIEW

    A trial court’s denial of a defendant’s motion to dismiss

for insufficiency of the evidence is reviewed de novo using the

following test: “[W]hen a defendant moves to dismiss a charge

against him on the ground of insufficiency of the evidence, the

trial court must determine ‘whether there is substantial

evidence of each essential element of the offense charged and of

the defendant being the perpetrator of the offense.’” State v.

Garcia, 358 N.C. 392, 412, 597 S.E.2d 724, 746 (2004) (quoting

State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)).

“‘Substantial evidence’ is relevant evidence that a reasonable

person might accept as adequate to support a particular

conclusion.”   Garcia, 358 N.C. at 412, 597 S.E.2d at 746

(citations omitted).
                              31


In order to withstand a motion to dismiss
charges contained in a juvenile petition,
there must exist substantial evidence of
each of the material elements of the offense
alleged. The evidence must be considered in
the light most favorable to the State, and
the State is entitled to receive every
reasonable inference of fact that may be
drawn from the evidence.
                                  32



In re Eller, 331 N.C. 714, 717, 417 S.E.2d 479, 481 (1992)

(internal citation omitted).


                               ARGUMENT

    The defendant was adjudicated delinquent for disorderly

conduct at school based on disturbing an Olive Garden-catered

gathering hours after school had let out.   North Carolina

General Statutes Section 14-288.4 (6) provides that a juvenile

engages in disorderly conduct at school when he “[d]isrupts,

disturbs or interferes with the teaching of students at any

public or private educational institution or engages in conduct

which disturbs the peace, order or discipline at any public or

private educational institution or on the grounds adjacent

thereto.”    Id.

    “When the words ‘interrupt’ and ‘disturb’ are used in

conjunction with the word “school,” they mean to a person of

ordinary intelligence a substantial interference with,

disruption or and confusion of the operation of the school in

its program of instruction and training of students there

enrolled.”    In re Grubb, 103 N.C. App. 452, 454, 405 S.E.2d 797,

798 (1991) (quoting State v. Wiggins, 272 N.C. 147, 158 S.E.2d

37 (1967)).
                                33


Wiggins was decided under a previous but now-repealed version of

N.C. Gen. Stat. Section 14-288.4.     However, this Court in Grubb

stated that this language controls under the new statute.    “The

fact that the word “interrupt” does not appear in the present

statute does not change the plain meaning of the language

contained therein. The conduct in question must substantially

interfere with the operation of school.”     Id.

    One example of conduct rising to the level of an

interruption or disturbance was presented in the case of State

v. Midgett, 8 N.C. App. 230, 174 S.E.2d 124 (1970), where

students locked the principal’s secretary out of her office,

barricading the doors with file cabinets and setting off the

school’s bell system, which resulted in some students being

dismissed early from their classes.

    In Grubb, by contrast, the juvenile was charged with

disorderly conduct at school for talking after being told to be

quiet by a teacher.   However, Grubb does not represent the outer

limits of the Wiggins test, as evidenced by Eller.    In Eller,

one student lunged at another with a carpenter’s nail and was

admonished, and both students subsequently struck the metal

shroud of a radiator several times, creating a rattling sound

that disrupted teaching in the classroom for fifteen to twenty
                                 34


seconds each time.    331 N.C. at 715, 417 S.E.2d at 480.   On

those facts, the North Carolina Supreme Court determined that

the disturbance caused by the students was not “substantial”

enough to fall under the statute.     In its analysis, the Court

noted that school instruction “w[as] not interrupted for any

appreciable length of time or in any significant way.”      Id. at

719, 417 S.E.2d at 483.

    This case, in the light most favorable to the State, is

much closer on the spectrum to Grubb and Eller than to Midgett

or Wiggins.    Here, the juvenile attended a gathering at the

school.    The gathering was a dinner gathering after school had

recessed for the day.    It occurred in a cafeteria rather than a

classroom or a principal’s office.     The juvenile’s only act of

disturbance was “a little tap type” of push against the victim.

There is no evidence this “tap” interfered or disrupted the

school in any manner or that any school instruction or

activities were halted or disturbed.     Clearly, an assault, on

its own and even when committed in the classroom, is not always

sufficient to rise to the level of disorderly conduct at school.

Otherwise, the student who lunged at another with a nail during

a school lecture in Eller would have necessarily committed the

offense.    Instead, the Court determined that such an offense
                                35


must “substantially interfere” with school activities.

    In the instant case, there was no interference with school

activities from the evidence presented, much less a substantial

interference.   As such, the trial court erred by denying the

juvenile’s motion to dismiss the charge of disorderly conduct at

school for insufficiency of the evidence.

    Assuming, in the alternative, that the trial court did not

err in denying the juvenile’s motion to dismiss for

insufficiency of evidence, it is important to note that the

trial court’s decision to adjudicate the juvenile delinquent

must be held to a higher standard.   “The allegations of a

petition alleging the juvenile is delinquent shall be proved

beyond a reasonable doubt. The allegations in a petition

alleging undisciplined behavior shall be proved by clear and

convincing evidence.”   N.C. Gen. Stat. Section 7B-2409.

Although the juvenile contends the trial court erred in denying

his motion to dismiss, he argues that, regardless of the court’s

decision on the motion to dismiss, there was an insufficient

quantum of evidence to support an adjudication of delinquency.



                            CONCLUSION

    Since the juvenile petitions were untimely, the trial court
                                 36


never had subject matter jurisdiction over this action, and the

adjudication and dispositional orders entered should thus be

vacated.   In the alternative, the trial court committed

reversible error in determining that the custodial statements of

the juvenile should be admitted, and in denying the defendant’s

motion to dismiss the disorderly conduct at school charge for

insufficiency of the evidence or, in the alternative, the

adjudication should be reversed on the ground that reasonable

doubt existed from the record.

    Respectfully submitted, this the ___ day of September,

2008.



                                      Ryan McKaig
                                      Attorney for the Defendant
                                      4601 Six Forks Rd., Suite 500
                                      Raleigh, NC 27609
                                      (919) 215-3613
                                      N.C. State Bar No. 35436
                               37




                     CERTIFICATE OF SERVICE

    THIS IS TO CERTIFY that a copy of the foregoing Juvenile-

Appellant’s Brief was duly filed and served upon the following

by depositing the same in a post-paid, properly addressed

envelope in a Post Office or official depository under the

exclusive care and custody of the United States Postal Service.

    Barbara A. Shaw
    Assistant Attorney General
    North Carolina Department of Justice
    P.O. Box 629
    Raleigh, NC 27602



    This the      day of September, 2008.
                              38




                                   Ryan McKaig
                                   Attorney for the Defendant
                                   4601 Six Forks Rd., Suite 500
                                   Raleigh, NC 27609
                                   (919) 215-3613
                                   N.C. State Bar No. 35436

Filed with:

    John Connell, Clerk
    North Carolina Court of Appeals
    P.O. Box 2779
    Raleigh, NC 27602-2779

Served on:

    Barbara A. Shaw
    Attorney General
    North Carolina Department of Justice
    P.O. Box 629
    Raleigh, NC 27602

								
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