In re: T.T.E. , 260 N.C. App. 378 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-648
Filed: 17 July 2018
Buncombe County, No. 16 JB 315
IN THE MATTER OF: T.T.E.
Appeal by juvenile from adjudication and disposition entered 27 February 2017
by Judge Susan M. Dotson-Smith in District Court, Buncombe County. Heard in the
Court of Appeals 13 December 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Janelle E.
Varley, for the State.
Morgan & Carter PLLC, by Michelle F. Lynch, for juvenile-appellant.
STROUD, Judge.
Juvenile appeals adjudication and disposition orders for disorderly conduct
and resisting a public officer. Because there was insufficient evidence to support the
adjudication for either offense, we vacate the juvenile court’s adjudication and
disposition orders.
I. Background
On 8 November 2016, a JUVENILE PETITION (DELINQUENT) was filed
alleging juvenile had engaged in disorderly conduct and resisting a public officer. The
IN RE: T.T.E.
Opinion of the Court
State called two witnesses to testify. The primary witness was the school resource
officer, Mickey Ray. Officer Ray testified he saw the juvenile throw a chair in the
cafeteria. No one was hit with the chair and the officer testified “I didn’t see anybody,
you know, around that could have been hit by the chair.” After throwing the chair,
juvenile ran out of the cafeteria; the officer followed and without calling out to
juvenile, grabbed him from behind. Juvenile initially cursed when Officer Ray caught
him and then told him he was playing with his brother. The district court adjudicated
the juvenile as delinquent for disorderly conduct and resisting a public officer.
Juvenile appeals.
II. Petition for Disorderly Conduct
Juvenile first contends that his petition for disorderly conduct under North
Carolina General Statute § 14-288.4 was defective because it is not clear which
subsection of this statute he violated. The State contends it is “clear” it was
proceeding under North Carolina General Statute § 14-288.4(a)(1): “Because the
charging language so closely tracks the statutory language of § 14-288.4(a)(1), the
petition was sufficiently clear and provided the juvenile with adequate notice of the
charged offense and the conduct which was the subject of the allegation.” We need
not address juvenile’s argument regarding the petition because he will prevail on his
second argument regarding his motion to dismiss. But we also note that based upon
the State’s argument that only North Carolina General Statute § 14-288.4(a)(1)
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applies, we will analyze the motion to dismiss for disorderly conduct under the
elements of that subsection only.
III. Motion to Dismiss
Juvenile argues the trial court erred in denying his motion to dismiss both of
the charges against him due to the insufficiency of the evidence.1 “Where the juvenile
moves to dismiss, the trial court must determine whether 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 re Heil, 145 N.C. App. 24, 28, 550 S.E.2d
815, 819 (2001) (citation, quotation marks, ellipses, and brackets omitted).
In reviewing a challenge to the sufficiency of
evidence, it is not our duty to weigh the evidence, but to
determine whether there was substantial evidence to
support the adjudication, viewing the evidence in the light
most favorable to the State, and giving it the benefit of all
reasonable inferences.
Id. at 29, 550 S.E.2d at 819.
A. Disorderly Conduct
Juvenile contends the trial court erred in denying his motion to dismiss due to
the insufficiency of the evidence. North Carolina General Statute § 14-288.4(a)(1)
provides that “[d]isorderly conduct is a public disturbance intentionally caused by
1 The State contends juvenile did not preserve his argument to challenge the disorderly
conduct adjudication when his motion to dismiss was for “no evidence of a disruption caused by”
juvenile. We disagree because the sufficiency of the evidence was plainly raised in juvenile’s attorney’s
motion despite use of the word “disruption” instead of “disorderly conduct.”
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any person who . . . [e]ngages in fighting or other violent conduct or in conduct
creating the threat of imminent fighting or other violence.” N.C. Gen. Stat. § 14-
288.4(a)(1) (2015). The State’s argument focuses on the general definition of a “public
disturbance” in North Carolina General Statute § 14-288.1:
(8) Public disturbance.-- Any annoying, disturbing, or
alarming act or condition exceeding the bounds of
social toleration normal for the time and place in
question which occurs in a public place or which
occurs in, affects persons in, or is likely to affect
persons in a place to which the public or a
substantial group has access. The places covered by
this definition shall include, but not be limited to,
highways, transport facilities, schools, prisons,
apartment houses, places of business or amusement,
or any neighborhood.
N.C. Gen. Stat. § 14-288.1(8) (2015).
The State does not cite any cases interpreting or discussing North Carolina
General Statute § 14-288.1(8) or -288.4(a)(1). Not surprisingly, the issue in several
of the cases addressing the specific subsections of North Carolina General Statute §
14-288.4 is whether the statute is unconstitutionally vague as many things could be
considered “annoying, disturbing, or alarming” by one person but not by another. See,
e.g., State v. Orange, 22 N.C. App. 220, 223, 206 S.E.2d 377, 379 (1974) (“Defendant
does contend that G.S. 14—288.4(a)(2) is unconstitutionally vague under the First
Amendment.”); State v. Clark, 22 N.C. App. 81, 87, 206 S.E.2d 252, 256 (1974)
(“Defendant also argues that section (a)(2) of G.S. 14—288.4, as amended in 1971, is
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unconstitutionally vague and overbroad.”). But in State v. Strickland, 27 N.C. App.
40, 42-43, 217 S.E.2d 758, 759-60 (1975), this Court determined that although North
Carolina General Statute § 14-288.1(8) -- the definition of “public disturbance” -- may
be unconstitutionally vague standing alone, it must be read in conjunction with the
specific acts which constitute a “public disturbance” under North Carolina General
Statute § 14-288.4, and when considered together, the statute is not
unconstitutionally vague:
The statute, G.S. 14—288.4(a), initially defines
disorderly conduct in general terms as a public disturbance
and then sets forth in subsequent subsections specific
examples of conduct which is prohibited as disorderly
conduct. It is a rule of construction, that when words of
general import are used, and immediately following and
relating to the same subject words of a particular or
restricted import are found, the latter shall operate to limit
and restrict the former. In order to ascertain what actions
are violative of the statute as constituting disorderly
conduct, one must look, not to the general definition of
public disturbance, but to the specific examples of
prohibited conduct as set forth in the subsections of the
statute itself.
Id. at 43, 217 S.E.2d at 760 (emphasis added) (citations and quotation marks
omitted). In fact, the State focuses on the portion of the definition in North Carolina
General Statute § 14-288.1(8) which the Strickland Court “assum[ed] arguendo” was
“unconstitutionally vague” and ignores the part of the statute which renders it
constitutional, which is the additional detail regarding prohibited acts provided in
North Carolina General Statute § 14—288.4(a)(4). Id.
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Here, under North Carolina General Statute § 14-288.4(a)(1) the State must
present evidence that the juvenile engaged in:
1. “fighting or”
2. “other violent conduct or”
3. “conduct creating the threat of imminent fighting or other violence”
N.C. Gen. Stat. § 14-288.4(a)(1). There was no evidence that the juvenile was
“fighting” with anyone, so the only question before this Court is whether there was
evidence of “other violent conduct or . . . conduct creating the threat of imminent
fighting or other violence.” Id. The State argues based almost entirely on the
language of the general definition of “public disturbance” in North Carolina General
Statute § 14-288.1(8) that “throwing a chair at another student is arguably an
alarming act that exceeds the bounds of what is normally tolerated in a school
cafeteria.” The State contends the evidence shows “arguably violent conduct” because
if the juvenile had thrown the chair at another student and if it hit them, “it
presumably would have hurt them.”
Although we view the evidence in the light most favorable to the State, see
Heil, 145 N.C. App. at 29, 550 S.E.2d at 819, we do not go so far as to come up with
hypothetical events that could have happened if juvenile actually did something in
addition to what the actual evidence shows. Since the State does not address the
elements of North Carolina General Statute § 14-288.4(a)(1) directly, it does not note
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Opinion of the Court
any evidence which shows “violent conduct” or “conduct creating the threat of
imminent fighting or other violence[,]” but that omission is likely because there is no
such evidence. N.C. Gen. Stat. § 14-288.4(a)(1). In fact, the officer was specifically
asked if he though juvenile “was playing, or did it seem like something that was a
little more violent?” to which he responded, “I couldn’t really tell[.]” The State simply
asks we infer too much from the evidence it presented.
The evidence was not sufficient to show that the juvenile fought, engaged in
violent conduct, or created an imminent risk of fighting or other violence. See id.
Although there were other students in the cafeteria – a very large room – when the
juvenile threw a chair, no other person was nearby, nor did the chair hit a table or
another chair or anything else. Juvenile then ran out of the cafeteria. This is not
“violent conduct or . . . conduct creating the threat of imminent fighting or other
violence.” Id. No one was hurt or threatened during the event and juvenile did not
escalate the situation by yelling, throwing other things, raising fists, or other such
conduct that along with the throwing of the chair could be construed to indicate
escalating violent behavior. Throwing a single chair with no other person nearby and
without attempting to hit another person and without hitting even any other item in
the cafeteria is not disorderly conduct as defined by North Carolina General Statute
§ 14-288.4(a)(1). We vacate juvenile’s adjudication and disposition for disorderly
conduct.
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B. Resisting a Public Officer
Juvenile also contends there was insufficient evidence he resisted a public
officer. To adjudicate a juvenile for resisting a public officer there must be evidence:
(1) that the victim was a public officer;
(2) that the defendant knew or had reasonable
grounds to believe that the victim was a public officer;
(3) that the victim was discharging or attempting
to discharge a duty of his office;
(4) that the defendant resisted, delayed, or
obstructed the victim in discharging or attempting to
discharge a duty of his office; and
(5) that the defendant acted willfully and
unlawfully, that is intentionally and without justification
or excuse.
State v. Dammons, 159 N.C. App. 284, 294, 583 S.E.2d 606, 612 (2001); see N.C. Gen.
Stat. § 14-223 (2015).
There is no dispute that Officer Ray was a public officer discharging a duty of
his office. But the evidence does not support the remaining elements of North
Carolina General Statute § 14-223. See generally Dammons, 159 N.C. App. at 294,
583 S.E.2d at 612. Officer Ray testified he never told juvenile to stop before he
grabbed him by the shirt from behind. Officer Ray specifically testified that he “kind
of, snuck up on him” and then grabbed juvenile by his shirt. Officer Ray was cross-
examined on this point:
Q. Deputy Ray, in your earlier testimony, you
say that you snuck up on . . . [juvenile], correct?
A. I was, kind of, being sleek about it.
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Opinion of the Court
Q. And you did so, because you didn’t want him
to not come with you, correct?
A. Yes, ma’am.
Q. So at any point before you decided -- before you
grabbed him by the shirt, did you talk to him and explain
to him why you were behind him?
A. No, ma’am.
Officer Ray never asked the juvenile to stop and intentionally snuck up on
juvenile; the uncontroverted evidence shows juvenile was suddenly grabbed without
any way of knowing who was grabbing him. Thus, the juvenile did not know or have
“reasonable grounds to believe that the victim was a public officer” until after Officer
Ray stopped him and he saw that it was a police officer who grabbed him, not another
student. Id.
There is also no evidence that juvenile “resisted, delayed, or obstructed the
victim in discharging or attempting to discharge a duty of his office[.]” Id. After
juvenile saw that Officer Ray was the person who grabbed him, he did not hit, fight,
or physically engage with the officer. While the State focuses on the fact that the
juvenile yelled “no” and cursed when the officer grabbed him, his language does not
rise to the level of a violation of North Carolina General Statute § 14-223, particularly
as his statements appear to have been made when he was grabbed and before he
knew who was grabbing him from behind:
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Merely remonstrating with an officer in
behalf of another, or criticizing an officer
while he is performing his duty, does not
amount to obstructing, hindering, or
interfering with an officer;
Vague, intemperate language used without
apparent purpose is not sufficient.
The Supreme Court of the United States has said that:
Although force or threatened force is
not always an indispensable ingredient of the
offense of interfering with an officer in the
discharge of his duties, mere remonstrances
or even criticisms of an officer are not usually
held to be the equivalent of unlawful
interference.
State v. Allen, 14 N.C. App. 485, 491–92, 188 S.E.2d 568, 573 (1972) (citations,
quotation marks, ellipses, and brackets omitted).
In addition, the evidence does not show that by saying “no” and cursing,
juvenile “acted willfully and unlawfully, that is intentionally and without
justification or excuse.” Dammons, 159 N.C. App. at 294, 583 S.E.2d at 612. Most
people would probably have some sort of similar reaction if grabbed from behind
without knowing who was grabbing them. The State’s other witness, Mr. Tate
McQueen – teacher and soccer coach at the school – testified that during the ordeal,
there was a lot of adrenaline, and you know, after things
settled down into the conference room, he was remarkably
calm at that point. And he was very respectful in the
conference room, once everything calmed down. I think in
the moment with everybody watching him, and how that
can play a role in the way young people behave, I think once
he was calming down in that environment, it settled down.
It was between the point of where I came around the corner
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Opinion of the Court
and saw that part, it was probably, maybe a minute-and-a-
half, maybe.
(Emphasis added.) Within less than two minutes after being “snuck up on” and
grabbed from behind, juvenile was “remarkably calm” and “very respectful[.]” Again,
even considering the evidence in the light most favorable to the State, see Heil, 145
N.C. App. at 29, 550 S.E.2d at 819, the facts do not indicate resisting an officer. We
vacate juvenile’s adjudication and disposition for resisting a public officer.
IV. Conclusion
Because the State did not present sufficient evidence of disorderly conduct and
resisting a public officer, we vacate the adjudication and disposition orders.
VACATED.
Judge ZACHARY concurs.
Judge ARROWOOD concurs in part and dissents in part.
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No. COA17-648 – In the Matter of: T.T.E.
ARROWOOD, Judge, concurring in part and dissenting in part.
I concur in the majority’s opinion that there was insufficient evidence to
support juvenile’s adjudication for resisting a public officer. However, I respectfully
dissent from the majority’s holding that there was insufficient evidence to support
the adjudication for disorderly conduct.
At the outset, juvenile argues that his petition for disorderly conduct under
N.C. Gen. Stat. § 14-288.4 was defective because it is not clear which subsection of
the statute he was charged with violating. The majority did not address this
argument because it held that juvenile prevailed on his second argument – that there
was insufficient evidence of disorderly conduct. Because I disagree with this holding,
I address the jurisdictional argument.
“[I]t is well established that fatal defects in an indictment or a juvenile petition
are jurisdictional, and thus may be raised at any time.” In re S.R.S., 180 N.C. App.
151, 153, 636 S.E.2d 277, 279-80 (2006) (citations omitted). “When a petition is fatally
deficient it . . . fails to evoke the jurisdiction of the court.” Id. at 153, 636 S.E.2d at
280 (citations and internal quotation marks omitted). A juvenile petition in a juvenile
delinquency action “serves essentially the same function as an indictment in a felony
prosecution and is subject to the same requirement that it aver every element of a
criminal offense, with sufficient specificity that the accused is clearly apprised of the
conduct for which he is being charged.” Id. (citation and internal quotation marks
omitted).
IN RE: T.T.E.
ARROWOOD, J., concurring in part and dissenting in part
The petition at issue alleged juvenile violated N.C. Gen. Stat. § 14-288.4 when
he “did intentionally cause a public disturbance at Clyde A. Erwin High School,
Buncombe County NC, by engaging in violent conduct. This conduct consisted of
throwing a chair toward another student in the school’s cafeteria.” Because this
language closely tracks the statutory language of N.C. Gen. Stat. § 14-288.4(a)(1),
“[d]isorderly conduct is a public disturbance intentionally caused by any person who
. . . [e]ngages in fighting or other violent conduct or in conduct creating the threat of
imminent fighting or other violence[,]” and the petition lists the offense as N.C. Gen.
Stat. § 14-288.4, I would hold that, based on the totality of the circumstances, the
petition averred the charge with sufficient specificity that juvenile was clearly
apprised of the conduct for which he was charged. See State v. Simpson, 235 N.C.
App. 398, 402-403, 763 S.E.2d 1, 4-5 (2014) (holding an indictment was not fatally
defective even though it did not list which subsection of a statute the defendant was
charged with violating because it was clear from the indictment which subsection was
charged). Therefore, the petition was not fatally defective, and the trial court had
jurisdiction to enter the adjudication and disposition orders against juvenile.
Next, juvenile argues, and the majority opinion agrees, that the trial court
erred by denying juvenile’s motion to dismiss the charge of disorderly conduct for
insufficiency of the evidence. I disagree.
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IN RE: T.T.E.
ARROWOOD, J., concurring in part and dissenting in part
“We review a trial court’s denial of a [juvenile’s] motion to dismiss de novo.” In
re S.M.S., 196 N.C. App. 170, 171, 675 S.E.2d 44, 45 (2009) (citation omitted). “Where
the juvenile moves to dismiss, the trial court must determine whether 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 re Heil, 145 N.C. App. 24, 28,
550 S.E.2d 815, 819 (2001) (citation and internal quotation marks omitted)
(alterations in original). “The evidence must be such that, when it is viewed in the
light most favorable to the State, it is sufficient to raise more than a suspicion or
possibility of the respondent’s guilt.” In re Walker, 83 N.C. App. 46, 48, 348 S.E.2d
823, 824 (1986) (citation omitted).
Here, the State’s evidence tended to show that juvenile lifted a chair and threw
it across the cafeteria at his brother and then fled the scene. Despite this evidence,
juvenile argues that the State did not put forth sufficient evidence of disorderly
conduct because it did not present substantial evidence (1) that he caused a public
disturbance or (2) that he engaged in “fighting or other violent conduct or in conduct
creating the threat of imminent fighting or other violence[,]” as required under N.C.
Gen. Stat. § 14-288.4(a)(1). A public disturbance under N.C. Gen. Stat. § 14-
288.4(a)(1) is:
Any annoying, disturbing, or alarming act or condition
exceeding the bounds of social toleration normal for the
time and place in question which occurs in a public place
or which occurs in, affects persons in, or is likely to affect
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IN RE: T.T.E.
ARROWOOD, J., concurring in part and dissenting in part
persons in a place to which the public or a substantial
group has access. The places covered by this definition
shall include, but not be limited to, highways, transport
facilities, schools, prisons, apartment houses, places of
business or amusement, or any neighborhood.
N.C. Gen. Stat. § 14-288.1(8) (2017). The statute does not define “violent conduct.”
See N.C. Gen. Stat. § 14-288.1.
Here, the State’s evidence that juvenile threw a chair at another student was
substantial evidence of a public disturbance under the statute as an act that was
alarming or exceeded the bounds of social toleration. However, “[i]n order to
ascertain what actions are violative of the statute as constituting ‘disorderly conduct,’
one must look, not to the general definition of ‘public disturbance,’ but to the specific
examples of prohibited conduct as set forth in the subsections of the statute itself.”
State v. Strickland, 27 N.C. App. 40, 43, 217 S.E.2d 758, 760, appeal dismissed, 288
N.C. 512, 219 S.E.2d 348 (1975). Therefore, at issue here is whether the State put
forth substantial evidence that juvenile engaged in violent conduct. The majority
agrees with juvenile that this evidence was not sufficient to show that juvenile
engaged in violent conduct under N.C. Gen. Stat. § 14-288.4(a)(1). Therefore, the
majority vacated the adjudication and disposition order as to this charge. I disagree.
I would hold that, viewing this evidence in the light most favorable to the State,
the safety resource officer’s testimony that juvenile threw a chair, which the juvenile
admitted he was throwing at another student, his brother, provided substantial
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IN RE: T.T.E.
ARROWOOD, J., concurring in part and dissenting in part
evidence of violent conduct, from which the trial court could reasonably determine
that juvenile’s act of throwing a chair at another student amounted to violent conduct.
Accordingly, I would find no error in the trial court’s denial of juvenile’s motion to
dismiss the disorderly conduct charge.
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