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					NO. COA06-1546                          DISTRICT 16-B

           NORTH CAROLINA COURT OF APPEALS
               *******************************
IN THE MATTER OF C.A.B.,            ) From Robeson
         Juvenile                   )
                *****************************
                JUVENILE-APPELLANT’S BRIEF
                *****************************
                  QUESTIONS PRESENTED

I.     DID THE JUVENILE COURT ERR BY DENYING THE
       JUVENILE’S MOTION TO DISMISS THE PETITION FOR
       MISDEMEANOR ASSAULT INFLICTING SERIOUS INJURY DUE
       TO INSUFFICIENT EVIDENCE THAT THE JUVENILE WAS THE
       PERPETRATOR OF THE OFFENSE?

II.    DID THE JUVENILE COURT ERR BY ADJUDICATING THE
       JUVENILE TO BE DELINQUENT OF THE OFFENSE OF
       MISDEMEANOR ASSAULT INFLICTING SERIOUS INJURY BY
       APPLYING THE QUANTUM OF PROOF OF CLEAR, COGENT
       AND CONVINCING EVIDENCE WHERE THE COURT WAS
       REQUIRED TO APPLY THE STANDARD OF PROOF BEYOND A
       REASONABLE DOUBT?

III.   WAS THE JUVENILE COURT WITHOUT AUTHORITY TO
       ORDER IN ITS DISPOSITION THAT A CIVIL JUDGMENT CAN
       BE ENTERED AGAINST THE JUVENILE FOR THE VICTIM’S
       UNPAID MEDICAL BILLS?

IV.    DID THE JUVENILE COURT ERR IN ITS WRITTEN
       DISPOSITION AS TO THE TERMS OF RESTITUTION IN THAT
       THE ORDER REGARDING PAYMENT OF RESTITUTION OVER
       $500 IS NOT CHECKED ALTHOUGH THIS PARAGRAPH
       INDICATES THAT $622.31 BE PAID TO THE VICTIMS, WHILE
       ANOTHER PROVISION OF THE ORDER REGARDING
       PAYMENT OF RESTITUTION UP TO $500 IS CHECKED AND
       CONTAINS NO RESTITUTION AMOUNTS OR INTENDED
       PAYEES?



                              1
                       STATEMENT OF THE CASE

      The juvenile, C.A.B. was charged by a petition filed on March 3, 2006

with misdemeanor assault inflicting serious injury, the alleged assault

occurring on December 2, 2005. The juvenile denied responsibility for this

offense and was tried before the Honorable Herbert L. Richardson, District

Court Judge presiding over the May 4, 2006 Juvenile Session of Robeson

County District Court.      The juvenile was adjudicated delinquent of the

charge of misdemeanor assault inflicting serious injury and also admitted

responsibility to the unrelated offense of injury to personal property on May

4, 2006. The juvenile subsequently was placed on supervised probation for

a period of 12 months under a Level 2 disposition.

      The juvenile entered written Notice of Appeal to the North Carolina

Court of Appeals on May 5, 2006 for his adjudication of misdemeanor

assault inflicting serious injury.

   STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

      This is an appeal from the final order of the district court pursuant to

N.C.G.S. § 7B-2602(3).




                                      2
                     STATEMENT OF THE FACTS

        The State’s evidence against C.A.B. was presented in its entirety

through the testimony of Brandon West. The juvenile did not testify or

present any evidence.

        Brandon West is the 20 year-old cousin of C.A.B.         Tp. 4.   On

December 2, 2005, he was at C.A.B.’s house. Tp. 5.       West had been “just

riding, all around” with “Joe” and his girlfriend before stopping at C.A.B.’s

home.     They had stopped at the house to see West’s aunt, who is the

juvenile’s mother. Tp. 6. West entered the house and talked to his aunt. Tp.

7. West then went outside to get Joe and his girlfriend, who had been sitting

in the car, to come in the house. Joe and his girlfriend, however, did not

come inside; West tried to get them to come inside for ten to fifteen minutes.

Tpp. 8-9.

        While West was outside attempting to have Joe and his girlfriend

come inside, C.A.B. and a “couple more people,” who were about the same

age as the juvenile, were present. Tp. 9. West and C.A.B. were “talking and

horse playing.” Tp. 8. West’s relationship with C.A.B. to this point was

“pretty cool,” i.e., good. Tp. 25. They had not had a fight before. Tp. 25.

C.A.B. wanted to “tap box” or play fight with West. Tp. 10. West told the

juvenile he did not want to tap box. C.A.B. “might’ve came in [West’s] face



                                      3
*twice.” Tp. 10. West pushed C.A.B. back with two hands and told him

that he did not want to play or fight. Tp. 10. West told C.A.B. that he was

going to hurt him if the juvenile did not leave him alone. Tp. 28. West then

turned around and started talking to “the boy in the car,” presumably “Joe”.

Tp. 11.

      Five or six seconds later, West claimed that C.A.B. hit him “from the

side.” Tp. 11. West, however, did not see C.A.B. hit him. Tp. 27. West did

not know if he was hit with an open hand or a closed fist. Tp. 11. West

stated:

      I didn’t even see it coming to tell you the truth. I was just bent down
      like this. I just got hit, and I don’t even really remember nothing after
      that hardly, just falling down.

Tp. 11. The next thing West remembered was seeing C.A.B. on the porch

going inside the house. Tp. 12. C.A.B.’s brother, presumably a juvenile,

and another boy were still outside. Tpp. 12-3. West could hear C.A.B.

“talking trash,” but could not understand what he was saying. Tp. 13.

      West’s face hurt; he looked in the car mirror and saw that his mouth

was injured. Tpp. 13-14. West went into the house and told C.A.B.’s

mother what had happened. Tp. 14. West was subsequently hospitalized.

Tpp. 15-16. A metal plate was inserted in West’s mouth and he lost one

tooth due to the incident. Tp. 17.



                                      4
                               ARGUMENT

I.    THE JUVENILE COURT ERRED BY DENYING THE
      JUVENILE’S MOTION TO DISMISS THE PETITION FOR
      MISDEMEANOR ASSAULT INFLICTING SERIOUS INJURY
      DUE TO INSUFFICIENT EVIDENCE THAT THE JUVENILE
      WAS THE PERPETRATOR OF THE OFFENSE.


                 Assignment of Error No. 1, Tp. 29, Rp. 37.

      The juvenile moved the court to dismiss the petition for assault

inflicting serious injury due to insufficient evidence that C.A.B. struck West.

This motion was denied. Tp. 29. C.A.B. asserts that the juvenile court erred

by denying his motion to dismiss the petition.

A.    Standard of Review.

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

supported by competent evidence, the trial court's conclusions of law are

reviewed de novo. See State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866,

868 (2002)(review of motion to dismiss); State v. Hyatt, 355 N.C. 642, 653,

566 S.E.2d 61, 69 (2002)(admissibility of defendant’s statements).

B. Legal Analysis.

      A motion to dismiss a juvenile petition is recognized by North

Carolina statutory and case law. Matter of J.A., 103 N.C.App. 720, 723, 407

S.E.2d 873, 875 (1991). In In re Dulaney, 74 N.C.App. 587, 328 S.E.2d 904

(1985), this Court held that a juvenile respondent “is entitled to have the


                                      5
evidence evaluated by the same standards as apply in criminal proceedings

against adults.” Id. at 588, 328 S.E.2d at 906.

      “[I]n order to withstand a motion to dismiss the charges contained in a

juvenile petition, there must be substantial evidence of each of the material

elements of the offense charged.” In re Bass, 77 N.C.App. 110, 115, 334

S.E.2d 779, 782 (1985). All of the evidence must be considered in the light

most favorable to the State, giving it the benefit of every reasonable

inference that may be drawn. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d

585, 587 (1984). However, if the evidence is “sufficient only to raise a

suspicion or conjecture as to either the commission of the offense or the

identity of the defendant as the perpetrator, the motion to dismiss must be

allowed.” State v. Molloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).

“This is true even though the suspicion aroused by the evidence is strong.”

Id.

      Here, West did not see C.A.B. hit him. Tp. 27.     The next thing that

West saw after being struck was C.A.B. on the porch going into his home.

Tp. 12.   There were, however, two other juveniles, including C.A.B.’s

brother in close proximity to West. Tpp. 12-13. At most this evidence

raises a strong suspicion that C.A.B. struck West.




                                       6
      Several cases are instructive on the issue of whether there is sufficient

evidence as to the identity of the perpetrator.   In State v. Cutler, 271 N.C.

379, 156 S.E.2d 679 (1967), the State offered evidence that on the same day

as the murder, a truck similar to defendant's was seen at the victim's house

and defendant was seen drunk and “bloody as a hog” with a large gash on

his head about 500 yards from the victim's house. 271 N.C. at 381, 156

S.E.2d at 681. Defendant was also found in possession of a knife with both

human blood and a hair “similar” to the chest hair of the victim on it. Id. at

384, 156 S.E.2d at 682. Nevertheless, the Supreme Court held that the

evidence was insufficient, noting that the State's evidence did not show any

blood from the deceased on “the person, clothing, knife or vehicle” of the

defendant and that the testimony regarding the chest hair was inconclusive.

Id. at 384, 156 S.E.2d at 682. The Supreme Court found that the evidence

was sufficient to raise a strong suspicion of the defendant's guilt but not

sufficient to remove that issue from the realm of suspicion and conjecture.

The motion for nonsuit therefore should have been granted. Id.

      Similarly, in State v. White, the Supreme Court held that there was

insufficient evidence to support that defendant was the perpetrator of

second-degree murder. 293 N.C. 91, 235 S.E.2d 55 (1977). In White, the

victim lived in a mobile home adjacent to the motel where the defendant



                                      7
lived, the defendant frequently visited the victim, the defendant was a black

male and a black male was seen running away from the mobile home on the

evening of the killing, there was blood on the carpet of defendant's motel

room, and a knife similar to the murder weapon was found in defendant's

room. In holding that the trial judge should have allowed defendant's motion

for non-suit, the Supreme Court stated that:

      The State has shown that the defendant was in the general vicinity of
      the deceased's home at the time of the murder and that he made
      several arguably contradictory statements during the course of the
      police investigation. It may even reasonably be inferred that the
      defendant was at the home of the deceased when the deceased came to
      her death, or shortly thereafter. Thus, the State has established that the
      defendant had an opportunity to commit the crime charged. Beyond
      that we must sail in a sea of conjecture and surmise. This we are not
      permitted to do.

Id. at 96, 235 S.E.2d at 59.

      In State v. Myers, ___ N.C.App. ___, ___ S.E.2d ___, 2007 WL 3333

(January 2, 2007), this Court upheld the trial court’s dismissal of the co-

defendants’ second degree murder charges where the evidence tended to

establish that: defendants were in the vicinity of a residence where the

victim’s body was found several hours later, that defendants argued and

struggled with an unidentified individual who groaned at one point during

the struggle, and one defendant appeared to have blood and dirt on his shirt

after the struggle. There was testimony indicating that there were other



                                       8
unidentified males in the area around the same time the murder occurred.

Although the evidence aroused strong suspicion, this Court concluded that it

is “sufficient only to raise a suspicion or conjecture as to either the

commission of the offense or the identity of the defendant as the

perpetrator,” and thus the trial court correctly granted defendants' motions to

dismiss. Id. (Citing Molloy, 309 N.C. at 179, 305 S.E.2d at 720).

      Other cases that are instructive on this issue are State v. Lee, 294 N.C.

299, 303, 240 S.E.2d 449, 451 (1978)(State failed to offer substantial

evidence that the defendant committed murder although evidence showed

defendant beat victim on two occasions and threatened to kill victim a day

or two before her death); State v. Poole, 285 N.C. 108, 116, 118, 119, 203

S.E.2d 786, 791, 792 (1974)(No substantial evidence that defendant was the

person who broke in home although he was 2/10 th of a mile from the house,

owned a rifle that was found in truck operated by him and a generic shirt

button was found at scene; victim did not identify defendant nor was there

any evidence of defendant’s fingerprints or shoe tracks at the scene); and

State v. West, 76 N.C.App. 459, 464, 333 S.E.2d 522, 525 (1985), review

improvidently allowed, 315 N.C. 387, 338 S.E.2d 106 (1986)(No substantial

evidence that defendant suffocated child where two persons had the

opportunity and motive to kill the victim).



                                      9
      Here, there were two other persons in the vicinity that could have

struck West: C.A.B.’s brother and another juvenile. After West had come

to his senses after being struck, C.A.B. was on the porch going into his

house while his brother and another juvenile remained outside. There was

no evidence presented as to the amount of time between West being struck

and seeing C.A.B. entering his home. It therefore is equally as plausible that

C.A.B.’s brother or the other juvenile struck West in retaliation for shoving

C.A.B. and then threatening to hurt him if he did not stop the horse play.

See Tp. 28.    Under the circumstances of this case, the evidence was

“sufficient only to raise a suspicion or conjecture” that C.A.B. struck West.

Molloy, 309 N.C. at 179, 305 S.E.2d at 720. The juvenile court therefore

should have granted C.A.B.’s motion to dismiss.

II.   THE JUVENILE COURT ERRED BY ADJUDICATING THE
      JUVENILE TO BE DELINQUENT OF THE OFFENSE OF
      MISDEMEANOR ASSAULT INFLICTING SERIOUS INJURY
      BY APPLYING THE QUANTUM OF PROOF OF CLEAR,
      COGENT AND CONVINCING EVIDENCE WHERE THE
      COURT WAS REQUIRED TO APPLY THE STANDARD OF
      PROOF BEYOND A REASONABLE DOUBT.

              Assignment of Error No. 2, Tp. 31, Rp. 6, Rp. 37.

      After hearing closing arguments on May 4, 2006, the juvenile court

indicated “I’m satisfied that your client is the one fellow who assaulted this

fella. I’m going to declare him delinquent.” Tp. 33. The court did not



                                     10
indicate the standard of proof it applied in order to reach this decision. The

juvenile entered Notice of Appeal on May 5, 2006. Rp. 19.

      The Juvenile Adjudication Order was signed by the court on May 9,

2006 and filed on May 10, 2006. Rpp. 6-7. Although Paragraph 3c of the

Juvenile Adjudication Order stated in pre-printed text that “[t]he following

facts have been proven beyond a reasonable doubt,” the body of the Order,

which was written into the pre-printed order, found:

      2.     That on or about December 2, 2005, the juvenile did unlawfully
             and willfully commit assault inflicting serious injury against
             Brandon West, being an offense in violation of G.S. 14-33(c)(1),
             and finds this by clear, cogent and convincing evidence.

Rp. 6 (Emphasis added).      The juvenile contends that the court erred by

adjudicating him delinquent of assault inflicting serious injury under an

improper evidentiary standard.

A.    Standard of Review.

      A trial court's conclusions of law are reviewed de novo. See State v.

Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002).

B.    Legal Analysis.

      The quantum of proof in an adjudicatory hearing alleging that a

juvenile is delinquent is proof beyond a reasonable doubt. N.C.G.S. § 7B-

2409. If the court finds that the allegations in the petition have been proven

beyond a reasonable doubt, the “court shall so state.” N.C.G.S. § 7B-2411.

                                     11
Failure of the court to follow this statutory mandate is error. In re Ewing, 83

N.C.App. 535, 537, 350 S.E.2d 887 (1986).

      The juvenile court made no finding in open court that the allegations

in C.A.B.’s petition were proven beyond a reasonable doubt; the court

merely indicated that it was “satisfied” C.A.B. committed assault inflicting

serious injury and found him to be delinquent. Tp. 33. The court's failure to

state the standard of proof used in making the determinations of delinquency

constitutes reversible error. Matter of Walker, 83 N.C.App. 46, 47, 348

S.E.2d 823, 824 (1986)(Finding of fact that “[T]he Court after hearing all the

evidence finds the allegations to be true” was reversible error).

      Furthermore, the Adjudication Order, entered four days after the oral

adjudication and three days after notice of appeal was given, states that the

court found C.A.B. to be delinquent by “clear, cogent and convincing

evidence.” Rp. 6. Finding C.A.B. to be delinquent based on the standard of

clear, cogent and convincing evidence violated the mandate of N.C.G.S. §§

7B-2409 and 2411. The Adjudication Order therefore should be reversed.

See In re Ewing, 83 N.C.App. at 537, 350 S.E.2d at 887 (reversible error

were statutory mandate violated).

      It is of no avail that the pre-printed order had the box checked

indicating that the facts had been proven beyond a reasonable doubt: The



                                      12
trial court is required “to affirmatively state that the allegations of the

juvenile petition were proved beyond a reasonable doubt.” Id. (Emphasis

added). Here, there is no indication that the juvenile court affirmatively

stated either through its oral pronouncement or its written order that

allegations were proven beyond a reasonable doubt. At most it can be said

that there is conflicting language in the written order that the facts were

proven beyond a reasonable doubt [in the pre-printed language] and that the

facts were proven by clear, cogent and convincing evidence [in the

additional type-written language]. The court’s adjudication that C.A.B. is

delinquent therefore should be reversed. Id.

III.   THE JUVENILE COURT WAS WITHOUT AUTHORITY TO
       ORDER IN ITS DISPOSITION THAT A CIVIL JUDGMENT
       CAN BE ENTERED AGAINST THE JUVENILE FOR THE
       VICTIM’S UNPAID MEDICAL BILLS.

         Assignments of Error Nos. 3 and 4, Tpp. 45-49, Rp. 12, Rp. 37.

       West’s medical bills were nine thousand sixty three and 72/100ths

dollars ($9,063.72). Tp. 34. The disposition entered in open court regarding

restitution contained the following pertinent requirements:

       He will be required to participate and pay back the restitution program
       up to five hundred dollars ($500) under the restitution program,
       because that’s the limit that he will be responsible for that under
       supervision.

       It should be noted that if the Medicaid kicks in and pays, and then if
       they pay out and then he will not be responsible for it. If not he will


                                     13
      participate in the restitution program and the community service which
      is part of the same thing, and that will be the limited statute of his
      restitution. That will be done under supervision.

      It should be noted that he is soon to be come [sic] sixteen. Will be
      noted that at the end of that period of time, the juvenile’s probation
      officer may opt out. And they can actually – if he finishes the program
      before the restitution is paid out, they can become a civil judgment
      against the defendant, and that’s another option they can use at the end,
      so that is available.

Tpp. 45-6 (Emphasis added). The juvenile court further ordered:

      That money can be paid back to this fellow to pay back some of the
      medical bills that’s involved in this.

      It should be noted that any part down the road, if they find that
      Medicaid will not cover, then we’ll add a clause into to reserve the
      right to come and amend judgment to show that. And then that way
      the total amount can be put in and then used as a judgment against
      him later, even if he’s not ordered to pay it under the judgment.

Tp. 46(Emphasis added). Paragraph 34 of the written Disposition Order

contained essentially the same language. Rp. 12.

      In the event that this Court finds that the juvenile court did not err in

adjudicating C.A.B. delinquent, he contends that the juvenile court was

without authority or subject matter jurisdiction to require that a civil

judgment be entered against him if he either failed to pay $500 restitution by

the time his probation ended or $9,063.72 if Medicaid did not pay West’s

medical bills.




                                      14
A.    Standard of Review.

      A trial court's conclusions of law are reviewed de novo. See State v.

Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Appellate issues

relating to jurisdictional defects cannot be waived. In re T.R.P., ___ N.C.

____, 636 S.E.2d 787, 792 (2006).

B.    Legal Analysis.

      North Carolina General Statute Section 7B-2506, Dispositional

alternatives for delinquent juveniles, provides in pertinent part:

      The court exercising jurisdiction over a juvenile who has been
      adjudicated delinquent may use the following alternatives in
      accordance with the dispositional structure set forth in G.S. 7B-2508:

             4) Require restitution, full or partial, up to five hundred dollars
             ($500.00), payable within a 12-month period to any person who
             has suffered loss or damage as a result of the offense committed
             by the juvenile. The court may determine the amount, terms,
             and conditions of the restitution. If the juvenile participated
             with another person or persons, all participants should be
             jointly and severally responsible for the payment of restitution;
             however, the court shall not require the juvenile to make
             restitution if the juvenile satisfies the court that the juvenile
             does not have, and could not reasonably acquire, the means to
             make restitution.

             (22) Require restitution of more than five hundred dollars
             ($500.00), full or partial, payable within a 12-month period to
             any person who has suffered loss or damage as a result of an
             offense committed by the juvenile. The court may determine the
             amount, terms, and conditions of restitution. If the juvenile
             participated with another person or persons, all participants
             should be jointly and severally responsible for the payment of
             the restitution; however, the court shall not require the juvenile

                                       15
              to make restitution if the juvenile satisfies the court that the
              juvenile does not have, and could not reasonably acquire, the
              means to make restitution.

Although a civil judgment for restitution can be entered against an adult

criminal defendant, see N.C.G.S. § 15A-1340.38, undersigned counsel has

been unable to identify any provision of the Juvenile Code that authorizes a

court to render a civil judgment against a juvenile delinquent for restitution

owed.1

      Our General Assembly “within constitutional limitations, can fix and

circumscribe the jurisdiction of the courts of this State.” Bullington v. Angel,

220 N.C. 18, 20, 16 S.E.2d 411, 412 (1941). “Where jurisdiction is statutory

and the Legislature requires the Court to exercise its jurisdiction in a certain

manner, to follow a certain procedure, or otherwise subjects the Court to

certain limitations, an act of the Court beyond these limits is in excess of its

jurisdiction.” Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975),

overruled on other grounds by Quick v. Quick, 305 N.C. 446, 290 S.E.2d

653 (1982).




1
 In fact, civil liability against an infant cannot be established without certain
procedural requirements being followed. See N.C.G.S. § 1A-1, Rules of
Civ.Proc., Rule 17 (Appointment of guardian ad litem, service of civil
process).


                                       16
      Since there is no statutory authority to enter a civil judgment for

restitution arising from a delinquency case, a juvenile court is without

jurisdiction to order entry of a civil judgment for restitution. See In re

T.R.P., ___ N.C. at ___, 636 S.E.2d at 790 (No jurisdiction where juvenile

petition not signed and verified). “A universal principle 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).

A judgment entered without jurisdiction is void. In re T.R.P., ___ N.C. at

___, 636 S.E.2d at 790. The juvenile court’s order permitting entry of a civil

judgment in any amount against C.A.B. therefore is void and should be

vacated. Id. at ___, 636 S.E.2d at 795; Matter of Wharton, 305 N.C. 565,

570, 290 S.E.2d 699, 691 (1982)(Juvenile court order vacated as it exceeded

authority of the court).




                                      17
IV.   THE JUVENILE COURT ERRED IN ITS WRITTEN
      DISPOSITION AS TO THE TERMS OF RESTITUTION IN
      THAT THE ORDER REGARDING PAYMENT OF
      RESTITUTION OVER $500 IS NOT CHECKED ALTHOUGH
      THIS PARAGRAPH INDICATES THAT $622.31 BE PAID TO
      THE VICTIMS, WHILE ANOTHER PROVISION OF THE
      ORDER REGARDING PAYMENT OF RESTITUTION UP TO
      $500 IS CHECKED AND CONTAINS NO RESTITUTION
      AMOUNTS OR INTENDED PAYEES.

                  Assignment of Error No. 5, Rpp. 9-10, Rp. 38.

      Paragraph 9 of the pre-printed Dispositional Order [Restitution over

$500] is not checked, yet the paragraph provides:

      The juvenile pay restitution in the amount of … $622.31, into the office
      of the Clerk of Superior Court for the benefit of … Robeson Co.
      Schools, Brandon West, within … twelve[.]”

Rp. 9. The term for payment of restitution presumably is twelve months. Rp.

9. Paragraph 17 of the Order [Restitution up to $500], however, is checked

with none of the blanks in the pre-printed form filled in. Rp. 10. In the event

that this Court decides that there was no error in adjudicating C.A.B.

delinquent, this is a clerical error that requires remand for correction.

      A. Standard of Review.

      An error is clerical if it is demonstrated by the record “that the trial

judge did not exercise any judicial discretion or undertake any judicial

reasoning when signing” the judgment. See State v. Jarman, 140 N.C.App.




                                       18
198, 203, 535 S.E.2d 875, 879 (2000)(Judgment granting defendant credit

for time served under house arrest was clerical error).

         B. Legal Analysis.

         "A court of record has the inherent power to make its records speak

the truth and, to that end, to amend its records to correct clerical mistakes or

supply defects or omissions therein." State v. Davis, 123 N.C.App. 240,

242-3, 472 S.E.2d 392, 393 (1996). Our courts have found clerical errors to

include the inadvertent checking of a box finding an aggravating factor on a

judgment form, see State v. Gell, 351 N.C. 192, 218, 524 S.E.2d 332, 349

(2000); a judgment mistakenly stating that prison term was imposed

pursuant to plea agreement, see State v. Leonard, 87 N.C.App. 448, 451-2,

361 S.E.2d 397, 399 (1987); and a judgment erroneously stating conviction

of wrong crime, see State v. Jamerson, 64 N.C.App. 301, 306, 307 S.E.2d

436, 439 (1983) (ordering new trial on other grounds, but indicating

judgment needed to be corrected to show proper convictions).


         C.A.B.’s Dispositional Order should have had Paragraph 9 checked,

but did not. This paragraph did include an amount of restitution in excess of

$500 and named the intended payees. Instead, Paragraph 17 for restitution

up to $500 was checked, but was otherwise blank. This clearly was clerical

error.    See State v. Jarman, 140 N.C.App. at 203, 535 S.E.2d at 879.

                                      19
Furthermore, it would appear that there is no way to determine through the

Order how the restitution is to be allocated between the intended payees, i.e.,

the Robeson County Schools and West. This also should be corrected.


                              CONCLUSION


      For the reasons set forth herein, C.A.B. is entitled to have his juvenile

adjudication for assault inflicting serious injury vacated. At a minimum, the

Dispositional Order permitting entry of a civil judgment against this juvenile

for any unpaid restitution should be struck and the Order corrected to reflect

the amount of restitution to be paid to each victim.

      Respectfully submitted, this the _____ day of January, 2007.



                          ______________________________
                          Brian Michael Aus
                          PO Box 1345
                          Durham, NC 27702
                          (919) 688-3704

                          ATTORNEY FOR JUVENILE-APPELLANT




                                      20
   CERTIFICATE OF COMPLIANCE WITH N.C.R.App.P. 28(j)(2)


      Undersigned counsel hereby certifies that this brief is in compliance
with N.C.R.App.P. 28(j)(2) in that it is printed in 14 point Times New
Roman font and contains no more than 8750 words in the body of the brief,
footnotes and citations included, as calculated by the word-processing
software used to prepare the brief, Microsoft Word.




                                _______________________________
                                Brian Michael Aus



              CERTIFICATE OF FILING AND SERVICE

       Undersigned counsel hereby certifies that he filed the original of the
foregoing brief by mailing it this day to the Clerk of the Court of Appeals,
and that he has served the foregoing brief upon all parties to the appeal by
mailing a copy thereof by United States Mail, first class postage affixed
thereto to counsel for the State of North Carolina:

      Nancy R. Dunn
      Assistant Attorney General
      9001 Mail Service Center
      Raleigh, NC 27699-9001.


      This the ______ day of January, 2007.




                                _____________________________
                                Brian Michael Aus



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