In re M.J.G. , 234 N.C. App. 350 ( 2014 )

NO. COA13-1293
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
In the matter of
M.J.G.
Brunswick County
No. 13 JB 70
Appeal by juvenile from adjudication and disposition orders
entered 10 July 2013 and 12 July 2013, respectively, by Judge
Sherry D. Prince in Brunswick County District Court. Heard in
the Court of Appeals 5 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Susannah P. Holloway, for the State.
Mark Hayes for juvenile-appellant.
McCULLOUGH, Judge.
The juvenile appeals from an adjudication order finding him
delinquent of misdemeanor assault and disorderly conduct at
school and from a level one disposition order. For the reasons
stated herein, we affirm the orders of the trial court.
I. Background
On 20 May 2013, two juvenile petitions were filed against
M.J.G. (“the juvenile”) in Brunswick County District Court
alleging offenses of misdemeanor assault in violation of N.C.
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Gen. Stat. § 14-33(a) and disorderly conduct in violation of
N.C. Gen. State § 14-288.4(a)(6).
An adjudication hearing was held on 25 June 2013. Evidence
presented at the adjudication hearing indicated that on 26 April
2013, a fundraiser volleyball game was being held in the
gymnasium at Waccamaw Elementary School (“Waccamaw”) in
Brunswick County, North Carolina. Children from the fifth,
sixth, seventh, and eighth grades were gathered in the
gymnasium, watching the game. The juvenile was a sixth grade
student at Waccamaw.
Emily Long, a teacher at Waccamaw, testified that she saw
two boys in the bleachers “getting ready to fight” by having
their “fists clenched.” As Ms. Long was approaching the two
boys, they were removed from the gymnasium by two other
teachers, including Ms. Meagan Potts. Ms. Long testified that
prior to the two boys being escorted out, she had seen the
juvenile sitting next to the boys, waving at Ms. Potts and
“telling her no, don’t stop it, go away.” Ms. Long told the
juvenile she wanted to talk to him about “not waving off a
fight,” not “waving the teachers off[,]” and requested that he
come off the bleachers to go outside with her. Ms. Long was on
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the floor of the gymnasium and the juvenile was on the second or
third bleacher. Ms. Long testified as follows:
[a]t that point [the juvenile] got angry,
did not want to come with me. I probably
repeated four or five times for him to come
on. He stormed off the bleachers and Ms.
[Susan Wood] had come up behind me and he
stormed right over her, ran right over her,
pushed out the gym door. I walked behind
him to go ahead and talk with him and kept
asking him to stop and let me talk to him.
The juvenile walked down a hallway and the school resource
office, Deputy Christopher Barbour, approached the juvenile and
Ms. Long. The juvenile began shouting, “I’m tired of this f’ing
school, these teachers lying on me, they’re always lying on me.”
The juvenile put his finger less than an inch away from Long’s
face, “postured up chest to chest” and said “[e]specially you
you mother-f***ing b****[.]” Thereafter, the juvenile backed
Ms. Potts against a wall and “did the exact same thing to her.”
Susan Wood, an emergency medical technician with Horry
County Fire Rescue, testified that she was in the Waccamaw
gymnasium on 26 April 2013. She was the parent of two children
attending Waccamaw and decided to watch the game. After seeing
a commotion, Wood walked over to Ms. Long’s location to see if
there was a medical issue that needed assistance. Wood
testified to the following:
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When I got to [Ms. Long], she was
asking [the juvenile] to come out of the
stands. Once I realized that it wasn’t a
medical issue, he was doing this at her –
shut up, shut your mouth, go away, we don’t
need you, go away, shut up, go away. And I
– I was shocked. . . . I decided to stand
and observe.
[The juvenile] finally stood up after,
you know, doing this motion at her, chopping
at her face, and telling her to go away, get
out of here, we don’t need you. Stood up -–
there was plenty of room between Ms. Long
and myself on either side and he was two or
three bleachers up and came down the
bleachers and body checked me. And the look
on his face was very defiant, almost ha, ha.
. . . .
I ended up taking three or four steps back
to keep from falling.
Deputy Christopher Barbour, the Waccamaw school resource
officer, testified that he was standing in a hallway adjacent to
the gymnasium when he spoke with Ms. Long. As Ms. Long was
attempting to explain the situation to Deputy Barber, the
juvenile “turned around and [the juvenile] started walking back
towards us and he was, you know, flaring his arms no, stop,
don’t, quit lying, you know, things of that nature.” Deputy
Barbour told the juvenile to leave the building but the juvenile
“jumped up, stomped his feet, and then he started cussing.”
Deputy Barbour further testified to the following:
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I originally thought he was going to go
around me to go out the door because that
was the direction in which he was headed.
But he just moseyed on right around me and
that’s when he got into Ms. Long’s face,
began cursing her, cursing Ms. Potts and
[another teacher.]
Deputy Barbour “had to physically put [his] hands on [the
juvenile] to remove him from the hallway[.]” Once the juvenile
was outside of the building, he continued to “curse and holler
and scream.” The juvenile was escorted to the main office of
the school.
On 10 July 2013, the trial court entered a “Juvenile
Adjudication Order” finding the juvenile delinquent of both
offenses. Following a disposition hearing held on 10 July 2013,
the juvenile received a Level I disposition. The juvenile was
ordered to be placed on probation for 12 months.
The juvenile appeals.
II. Discussion
On appeal, the juvenile argues that the trial court erred
by (A) failing to find that he was delinquent of the offense of
misdemeanor assault beyond a reasonable doubt; (B) allowing Ms.
Wood to characterize his expression as “defiant” and
alternatively, to deny his motion to dismiss the petition for
misdemeanor assault; (C) denying his motion to dismiss the
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petition for disorderly conduct; and (D) holding a sham
disposition hearing and violating the statutory mandate to allow
the juvenile’s parents to present evidence.
A. Standard of Proof
First, the juvenile argues that the trial court erred by
failing to find in its adjudication order, that he was
delinquent of the offense of misdemeanor assault beyond a
reasonable doubt. We disagree.
It is well established that
[t]he allegations of a petition alleging the
juvenile is delinquent shall be proved
beyond a reasonable doubt. Further, [i]f
the court finds that the allegations in the
petition have been proved . . ., the court
shall so state. . . . [I]t is reversible
error for a trial court to fail to state
affirmatively that an adjudication of
delinquency is based upon proof beyond a
reasonable doubt.
In re D.K., 200 N.C. App. 785, 788, 684 S.E.2d 522, 525 (2009)
(citations and quotation marks omitted).
Specifically, the juvenile argues that the adjudication
order does not include the conclusion of law that he committed
assault beyond a reasonable doubt and that the adjudication
order does not include findings of fact inferring such a
conclusion. The juvenile relies on In re J.V.J., 209 N.C. App.
737, 707 S.E.2d 636 (2011), for his contentions. In J.V.J., the
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juvenile argued that the trial court failed to make sufficient
findings of fact to support the conclusion that the juvenile had
committed the offense of assault on a government officer, and
our Court agreed. Id. at 739, 707 S.E.2d at 637. Our Court
noted that with respect to an adjudication order in the juvenile
delinquency context, N.C. Gen. Stat. § 7B-2411 provided that
[i]f the court finds that the allegations in
the petition have been proved [beyond a
reasonable doubt], the court shall so state
in a written order of adjudication, which
shall include, but not be limited to, the
date of the offense, the misdemeanor or
felony classification of the offense, and
the date of adjudication.
Id. at 739-40, 707 S.E.2d at 637 (emphasis in original). 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 have been
proved[.]’”. Id. at 740, 707 S.E.2d at 638. Accordingly, our
Court remanded the case to the trial court to make the
statutorily mandated findings of fact as set out in N.C. Gen.
Stat. § 7B-2411 (2009). Id. at 741, 707 S.E.2d at 638.
In the case sub judice, however, the facts are readily
distinguishable. Our review indicates that the 10 July 2013
“Juvenile Adjudication Order” entered by the trial court states
that the “petition(s) before the court” included “misdemeanor
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assault.” It also contains a blank space where the trial court
is to state findings of fact which “have been proven beyond a
reasonable doubt.” In this blank space, the trial court
indicated “please see attached ‘Adjudication Findings of Fact.’”
The attached “Adjudication Findings of Fact” included the
following findings of fact:
That on or about April 26, 2013, the
Juvenile was a spectator of a fundraiser
volleyball game inside the gymnasium of
Waccamaw School in Ash, North Carolina.
Waccamaw School is a public educational
institution in Brunswick County. That
during the volleyball game, which took place
at the end of a half-day of school, a
disturbance between two other juveniles
began. After the disturbance, Ms. Emily
Long, a teacher at Waccamaw School, asked
the Juvenile to come down from the bleachers
and leave the gymnasium as it appeared to
her that he was instigating the potential
fight between the other juveniles. The
Juvenile at first resisted, but then came
off the bleachers. While he was coming off
the bleachers, he came into contact with Ms.
Susan Wood, an EMT and parent of another
student that was watching the volleyball
game, by hitting Ms. Wood in her shoulder
and chest area with his shoulder as he
walked by her, causing Ms. Wood to move
backwards.
That after the Juvenile left the
gymnasium he went to an adjacent hallway to
wait for Ms. Long. Classes were not in
session in this hallway. The Juvenile, Ms.
Long, Ms. Wood, two other teachers, one of
the students involved in the original
disturbance, two [vendors], and possibly
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other students were present in the hallway
at this time. Deputy Chris Barbour, the
School Resource Officer, was present shortly
after the Juvenile entered the hallway. A
confrontation occurred whereby the Juvenile
became angry, erratic, and unresponsive to
the requests of Dept. Barbour. The Juvenile
began yelling at and directing profanity at
several teachers, refused to leave the area
when instructed to by Dept. Barbour, and
only left the hallway after being [forced]
to by Dept. Barbour. The students in the
gymnasium could not hear this altercation in
the hallway, but this conduct did disturb
the peace, order, or discipline at Waccamaw
School.
The “Juvenile Adjudication Order” also states that, “[t]he
Court concludes as a matter of law, that in regard to the
allegations in the petition(s) before the Court” the juvenile is
delinquent. Here, 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.”
Based on the foregoing, we reject the juvenile’s arguments
that the trial court failed to find that he had committed
misdemeanor assault beyond a reasonable doubt and affirm the
adjudication order of the trial court.
B. Ms. Wood’s Testimony and the Juvenile’s Motion to Dismiss
In his second argument, the juvenile asserts that the trial
court erroneously allowed Ms. Wood to testify that his
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expression was “defiant.” Alternatively, the juvenile argues
that the trial court erred by denying his motion to dismiss the
petition for assault based on insufficiency of the evidence.
At the juvenile’s adjudication hearing, Ms. Wood testified
to the following:
[The juvenile] finally stood up after, you
know, doing this motion at [Ms. Long],
chopping at her face, and telling her to go
away, get out of here, we don’t need you.
Stood up -– there was plenty of room between
Ms. Long and myself on either side and he
was two or three bleachers up and came down
the bleachers and body checked me. And the
look on his face was very defiant, almost
ha, ha.
The juvenile objected to this testimony and the trial court
overruled his objection.
The juvenile, relying on State v. Sanders, 295 N.C. 361,
245 S.E.2d 674 (1978) (citation omitted), argues that
ordinarily, “a witness’s opinion of another person’s intention
on a particular occasion is generally held to be inadmissible.”
Id. at 369-70, 245 S.E.2d at 681 (citation omitted). Here,
however, we believe that Ms. Wood’s testimony is more
appropriately characterized as describing the juvenile’s
demeanor on 26 April 2013.
Our Court addressed this issue in State v. Stager, 329 N.C.
278, 406 S.E.2d 876 (1991), by providing the following:
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Opinion evidence as to the demeanor of
a criminal defendant is admissible into
evidence. See State v. Moore, 276 N.C. 142,
171 S.E.2d 453 (1970). The rule has been
stated as follows:
The instantaneous conclusions
of the mind as to the appearance,
condition, or mental or physical
state of persons, animals, and
things, derived from observation
of a variety of facts presented to
the senses at one and the same
time, are, legally speaking,
matters of fact, and are
admissible in evidence.
A witness may say that a man
appeared intoxicated or angry or
pleased. In one sense the
statement is a conclusion or
opinion of the witness, but in a
legal sense, and within the
meaning of the phrase, 'matter of
fact,' as used in the law of
evidence, it is not opinion, but
is one of the class of things
above mentioned, which are better
regarded as matters of fact. 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.
Id. at 321, 406 S.E.2d at 900-901 (citations and quotation marks
omitted).
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Ms. Wood’s testimony that juvenile’s “look on his face” was
“very defiant” related to her perception of the juvenile shortly
after the alleged incident. Because this testimony stemmed from
Ms. Wood’s personal experience combined with Ms. Wood’s
observation of juvenile, it was admissible to shed light upon
the circumstances surrounding the alleged incident, and thus,
was relevant and admissible. See N.C. Gen. Stat. § 8C-1, Rule
401 and 402 (2013) (Rule 401 states that “relevant evidence” is
“evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the
evidence.” Rule 402 states that “[a]ll relevant evidence is
admissible” except as otherwise provided by the United States
and North Carolina Constitutions, as well as an Act of Congress
or the General Assembly, or by these rules). Therefore, we
reject the juvenile’s argument that the trial court erred by
admitting this challenged testimony.
In the alternative, juvenile argues that the trial court
should have granted his motion to dismiss because there was no
other evidence to indicate that his act was intentional. We
find the juvenile’s arguments unpersuasive.
Where the juvenile moves to dismiss,
the trial court must determine ‘whether
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there is substantial evidence (1) of each
essential element of the offense charged, .
. . and (2) of [juvenile’s] being the
perpetrator of such offense. In reviewing a
motion to dismiss a juvenile petition, the
evidence must be considered in the light
most favorable to the State, which is
entitled to every reasonable inference that
may be drawn from the evidence.
In re S.M., 190 N.C. App. 579, 581, 660 S.E.2d 653, 654-55
(2008) (citations omitted). An assault is “an overt act or
attempt, with force or violence, to do some immediate physical
injury to the person of another, which is sufficient to put a
person of reasonable firmness in fear of immediate physical
injury.” State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716,
721 (1995) (citation omitted).
A thorough review of the record demonstrates that Ms.
Wood’s testimony that the juvenile was “very defiant” is not the
only evidence to establish that the juvenile acted with intent.
Ms. Wood testified that the juvenile stood up after arguing with
Ms. Long, and “there was plenty of room between Ms. Long and
myself on either side and he was two or three bleachers up and
came down the bleachers and body checked me.” Ms. Wood also
testified that she “ended up taking three or four steps back to
keep from falling.” Furthermore, Ms. Long testified that
juvenile “stormed off the bleachers and Ms. Woods [sic] had come
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up behind me and he stormed right over her, ran right over her,
pushed out the gym door.”
In a juvenile adjudication hearing, “the court is empowered
to assign weight to the evidence presented at the trial as it
deems appropriate. . . . [T]he trial judge acts as both judge
and jury, thus resolving any conflicts in the evidence.” In re
Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 397 (1996)
(citations omitted). Reviewing the foregoing evidence in the
light most favorable to the State, we hold that there was
sufficient evidence for the trial court to determine that the
juvenile’s actions were intentional. Accordingly, we hold that
the trial court did not err by denying the juvenile’s motion to
dismiss the petition for misdemeanor assault.
C. Motion to Dismiss Petition for Disorderly Conduct
The juvenile argues that his actions did not amount to
disorderly conduct because there was insufficient evidence that
juvenile’s actions amounted to a disturbance of the peace,
order, or discipline at his school when no students, classes, or
programs were in any way affected and his actions minimally
affected the staff’s activities. Accordingly, he argues that
the trial court erred by denying his motion to dismiss the
petition for disorderly conduct. We disagree.
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Section 14-288.4(a)(6) of the North Carolina General
Statutes provides that:
(a) Disorderly conduct is a public
disturbance intentionally caused by any
person who does any of the following:
. . . .
(6) Disrupts, 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.
N.C. Gen. Stat. § 14-288.4(a)(6) (2013). “Our Supreme Court has
held that the conduct must cause a ‘substantial interference
with, disruption of and confusion of the operation of the school
in its program of instruction and training of students there
enrolled.’” In re M.G., 156 N.C. App. 414, 416, 576 S.E.2d 398,
400 (2003) (citation omitted).
The juvenile cites to 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. Gen. Stat. § 14-288.4(a)(6). In
Eller, the trial court adjudicated two students as delinquent of
disorderly conduct. The respondent Greer, then a fourteen-year-
old student at Beaver Creek High School, made a move toward
another student with a carpenter’s nail in her hand during a
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basic special education reading class. Id. at 715, 417 S.E.2d
at 480. The other student dodged respondent Greer’s move. This
move was made while the teacher was giving a reading assignment
at the chalkboard. Id. The teacher in the class approached
respondent Greer after relating the assignment and asked her
what was in respondent Greer’s hand. Respondent Greer willingly
gave the teacher the carpenter’s nail. The other students in
the class “observed the discussion and resumed their work when
so requested by [the teacher].” Id. At a later date,
respondent Greer and another fifteen-year-old student named
Eller, were in a mathematics class. The respondents Greer and
Eller were seated at the rear of the classroom with their peers
when they at least once each, struck the metal shroud of a
radiator “more than two or three times.” Id. at 716, 417 S.E.2d
at 480. Each strike produced a “rattling, metallic noise” which
caused their fellow peers to look “toward where the sound was
coming from” and caused the teacher to interrupt her lecture for
fifteen to twenty seconds each time. Id. at 716, 417 S.E.2d at
481. Our Supreme Court held that the State had not produced
substantial evidence that the respondents’ behavior constituted
a “substantial interference” because, inter alia, “the radiator
incident merited no intervention by the instructor other than
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glares of disapproval for a total of at most sixty seconds
during the entire class period” and “other students were only
modestly interrupted from their work and returned to their
lesson upon being instructed to do so by their teacher” after
“the nail incident.” Id. at 718, 417 S.E.2d at 482.
The Eller court cited to two cases to support its
conclusion – State v. Wiggins, 272 N.C. 147, 158 S.E.2d 37(1967) and State v. Midgett, 8 N.C. App. 230, 174 S.E.2d 124(1970). These two cases illustrate the level of interference
necessary to sustain a conviction of disorderly conduct. The
Wiggins court held that a motion for nonsuit was properly
overruled by the trial court where student-defendants picketed
on school grounds in front of a school building. Wiggins, 272
N.C. at 155, 158 S.E.2d at 43. The Wiggins court stated that
“[a]s a direct result of the [student-defendants’] activities,
the work of the class in bricklaying was terminated because the
teacher could not retain the attention of his students, and
disorder was created in the classrooms and hallways of the
school building itself.” Id. In Midgett, our Court affirmed
the denial of a motion for nonsuit when twelve student-
defendants entered the office of the secretary to the principal
of a public school. Midgett, 8 N.C. App. at 233, 174 S.E.2d at
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127. The student-defendants told the secretary that “they were
going to interrupt us that day” and “locked the secretary out of
her office, moved furniture about, scattered papers and dumped
some books on the floor.” Id. Because of the student-
defendants’ actions, the secretary, the principal, and another
teacher “were drawn or kept away from their jobs or classes” and
school was dismissed early. Id. As such, our Court held that
there was ample evidence to support all of the elements of
disorderly conduct. Id. at 233, 174 S.E.2d at 128.
The juvenile argues that the circumstances of the present
case are more similar to those found in Eller and
distinguishable from the facts found in Wiggins and Midgett.
After thoroughly reviewing the record, we disagree.
Ms. Long testified that there were 200 to 300 children in
the gymnasium. Ms. Wood testified that “[e]verybody was
watching what was happening between the teacher[, Ms. Long,] and
the [juvenile].” Two students testified that while they were in
the school’s gymnasium, they witnessed the disturbance. Ms.
Long was not able to supervise students or fulfill her duties in
the gymnasium because she had to assist in escorting the
juvenile out of the gymnasium. When the juvenile was in the
hallway, shouting at Ms. Long and Ms. Potts, at least four other
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students were in the hallway. In addition, Ms. Wood testified
that during the incident, “there was a lot of disjointed
information going on” as students “were being shoved on . . .
busses.” Significantly, “a group of special needs students came
into the office and because of everything that had just happened
they had missed their bus.”
The facts of the case sub judice, viewed in the light most
favorable to the State, demonstrate that the juvenile’s conduct
caused a substantial interference with, disruption of, and
confusion of the operation of the school. Unlike the
circumstances found in Eller and 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. In addition, the juvenile’s actions caused
such disruption and disorder, similar to those found in Midgett
and Wiggins, that a group of special needs students missed their
buses. Therefore, we hold that the trial court did not err by
denying the juvenile’s motion to dismiss the charge of
disorderly conduct.
D. Disposition Hearing
In his final argument, the juvenile argues that several
errors occurred at his disposition hearing.
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First, the juvenile argues that the fact that his
dispositional hearing on 10 July 2013 commenced at 9:47 a.m. and
concluded twelve minutes later, necessarily leads to the
conclusion that the conditions of juvenile’s probation was
signed by the trial court judge prior to the hearing, thus
resulting in a “sham” hearing. We note that the juvenile cites
to no authority to support his assumption. Furthermore, the
juvenile’s assertion is unpersuasive as the trial court judge
did not sign the disposition order until 12 July 2013, two days
following the day of the hearing.
In his second argument, the juvenile contends that the
trial court erred by allowing his mother to be heard only
subsequent to the trial court entering his disposition. After
careful review, we disagree.
Section 7B-2501 of the North Carolina General Statutes
provides that “(b) The juvenile and the juvenile’s parent,
guardian, or custodian shall have an opportunity to present
evidence, and they may advise the court concerning the
disposition they believe to be in the best interests of the
juvenile.” N.C. Gen. Stat. § 7B-2501 (2013).
At the disposition hearing, the trial court ordered, as a
condition of the juvenile’s disposition, that the juvenile’s
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parents attend “Strengthening Families” parenting classes.
Thereafter, the juvenile’s counsel stated that the juvenile’s
mother “did want to say a few words.” The trial court judge
gave an opportunity to the juvenile’s mother to speak. The
following exchange took place:
THE COURT: . . . I think you’ll be a very
beneficial member of the Strengthening
Families team. I have found at that program
it’s very helpful to share experiences.
And because you have that belief, I think
you’ll be a good leader possibly in that
group and a good resource person and will be
very beneficial not only for you but for
others to see what it means to be supportive
of your children and that sort of thing.
And that’s why I’m asking that you not as --
certainly not as punishment for you but I
think it would be -– that group is a very
beneficial group overall. And -–
[The juvenile’s mother:] Maybe I can be a
positive influence on somebody else.
Assuming arguendo that the juvenile is correct in his
contention that the trial court decided the terms of his
disposition prior to allowing the juvenile’s mother to be heard,
we find this error to be harmless based on the fact that the
juvenile’s mother did not object to the condition of attending
the “Strengthening Families” classes but effectively agreed with
the trial court.
III. Conclusion
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Where we find the juvenile’s challenges to the adjudication
and disposition orders unpersuasive, we affirm the orders of the
trial court.
Affirmed.
Judges HUNTER, Robert C., and GEER concur.