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In Matter of D.S.B

North Carolina Court of Appeals
Feb 19, 2008
188 N.C. App. 847 (N.C. Ct. App. 2008)

Opinion

No. COA07-572.

Filed February 19, 2008.

Caldwell County No. 00 JB 128.

Appeal by respondent juvenile from adjudication and disposition orders entered 6 December 2006 by Judge Robert M. Brady in Caldwell County District Court. Heard in the Court of Appeals 21 January 2008.

Attorney General Roy Cooper, by Assistant Attorney General Jennifer M. Jones, for the State. Lisa Skinner Lefler for juvenile-appellant.


The juvenile D.S.B. was adjudicated delinquent based on property damage to his uncle's truck. In the disposition order, the trial court placed D.S.B. on probation and, among other things, required respondent to pay restitution and perform community service. On appeal, the State concedes that the trial court failed to make the findings of fact necessary to support the restitution and community service requirements. We, therefore, vacate those portions of the disposition order and remand for further findings of fact. We affirm the adjudication order.

Facts

On 20 September 2006, the State filed a juvenile petition alleging that D.S.B. had committed misdemeanor injury to personal property causing damage in excess of $200.00. The petition identified the property as a 1998 Toyota Truck owned by Roy B., D.S.B.'s uncle. The date of the offense was listed as 16 June 2006.

We refer to the juvenile as D.S.B. and to his uncle as "Roy B." in order to protect the privacy of the juvenile.

At the adjudication hearing, Tina Honeycutt, Roy B.'s girlfriend, testified that, on 16 June 2006, she was inside cooking when she heard a screeching noise. She looked out the window and saw D.S.B., who was 12 at the time, scratching Roy B.'s car with a pocket knife. She pounded on the window, and D.S.B. ran away. When she checked the truck, she found a scratch mark along the truck and a dent.

Deputy Kevin Prestwood examined the truck and found a scratch from the driver's side rear to the front. He testified that Honeycutt had told him that she saw D.S.B. outside with a knife. According to Deputy Prestwood, his report regarding the incident indicated that it occurred on 15 June 2006.

Roy B. testified that Honeycutt told him about seeing D.S.B. using a knife on his truck. Although Roy B. had never had any trouble with D.S.B., he admitted to getting into a fight with D.S.B.'s father a few days before the incident, during which altercation D.S.B.'s father's truck was damaged.

D.S.B. testified on his own behalf and denied scraping his uncle's car or even owning a pocket knife. According to D.S.B., he was not on his uncle's property, but in May had visited his grandmother, who lived next door to his uncle. D.S.B.'s father testified that he did not take D.S.B. to Roy B.'s house on either 15 or 16 June 2006.

On 6 December 2006, the trial court entered an adjudication order, finding that D.S.B., on 15 June 2006, had committed the offense alleged in the juvenile petition of injuring personal property. In its disposition order, entered the same day, the trial court concluded that it was required to order a Level 1 disposition; placed D.S.B. on probation for six months; ordered restitution in the amount of $250.00, payable within three months and to be earned through Project Challenge; ordered D.S.B. to perform 45 hours of community service; and ordered D.S.B. not to associate with specified persons or be in specified places. D.S.B. timely appealed from both the adjudication and disposition orders.

D.S.B. first contends that the State presented insufficient evidence of the specific dollar amount of the damage to the vehicle and that there was a fatal variance between the indictment and the evidence as to the date of the offense. This issue — regarding the sufficiency of the evidence — was not, however, preserved for appeal. Although D.S.B. made a motion to dismiss at the close of the State's evidence, he did not renew that motion to dismiss following the close of his evidence.

Rule 10(b)(3) of the Rules of Appellate Procedure provides:

A defendant in a criminal case may not assign as error, the insufficiency of the evidence to prove the crime, charged unless he moves to dismiss the action, or for, judgment as in case of non suit, at trial. If a, defendant makes such a motion after the State has, presented all its evidence and has rested its case and, that motion is denied and the defendant then, introduces evidence, his motion for dismissal or, judgment in case of non suit made at the close of, State's evidence is waived. Such a waiver precludes, the defendant from urging the denial of such motion as, a ground for appeal.

See In re K.T.L., 177 N.C. App. 365, 369, 629 S.E.2d 152, 155 (2006) (holding that juvenile waived his right to challenge the sufficiency of the evidence against him when he failed to make a motion to dismiss the petition at close of all evidence), disc. review denied, ___ N.C. ___, 642 S.E.2d 442 (2007). Accordingly, because D.S.B. failed to renew his motion to dismiss after he introduced evidence, he is precluded from challenging the denial of his motion to dismiss on appeal.

D.S.B. next contends that the trial court failed to make adequate findings of fact in its disposition order to support its requirement of restitution and community service. The State agrees and requests that the Court "remand the Disposition Order for reconsideration of the restitution order, including findings regarding the juvenile's ability to pay restitution, whether the restitution is in the juvenile's best interest, and clarification of the amount of restitution. The State also requests that the Court remand the Disposition Order for clarification of the nature of the community service ordered."

N.C. Gen. Stat. § 7B-2506(4) (2005) permits a trial court to require restitution for damages caused by a juvenile. A court may order a juvenile to pay restitution, complete or partial, to a person who has suffered a loss due to the juvenile's actions. In re Schrimpsher, 143 N.C. App. 461, 464, 546 S.E.2d 407, 410 (2001). See also N.C. Gen. Stat. § 7B-2506(4) (one punishment option for a delinquent juvenile is to "[r]equire 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"). In order to be valid:

[a]n order of restitution must be supported by, the record, which demonstrates that the condition, is fair and reasonable, related to the needs of, the child, and calculated to promote the best, interest of the juvenile in conformity with the, avowed policy of the State in its relation with, juveniles. Further, the court shall not require, the juvenile to make restitution if the juvenile, satisfies the court that he does not have, and, could not reasonably acquire, the means to make, restitution.

Schrimpsher, 143 N.C. App. at 464, 546 S.E.2d at 410 (internal citations and quotation marks omitted). Accordingly, an order requiring restitution "` must be supported by the record and appropriate findings of fact which demonstrate that the best interest of the juvenile will be promoted by the enforcement of the condition.'" In re Heil, 145 N.C. App. 24, 31, 550 S.E.2d 815, 821 (2001) (quoting In re Berry, 33 N.C. App. 356, 360, 235 S.E.2d 278, 280-81 (1977)). Further, there must be findings "with respect to the amount of damage to the . . . property." Berry, 33 N.C. App. at 360, 235 S.E.2d at 281. Here, the trial court did not make the required findings of fact (1) that the restitution condition is fair and reasonable; (2) that it is related to the needs of the child; (3) that the restitution will promote the best interests of the child; and (4) regarding the monetary value of the damage to the truck.

A trial court may also order a delinquent juvenile to perform community service that is "consistent with the juvenile's age, skill, and ability." N.C. Gen. Stat. § 7B-2506(6). In doing so, however, the trial court must specify "the nature of the work and the number of hours required" and may not require the community service obligation to exceed 12 months. Id. The trial court's order specifies that D.S.B. was required to perform 45 hours of community service, but does not identify the nature of the community service work or the length of obligation.

Consequently, we must vacate the portions of the disposition order imposing restitution and community service and remand for further findings. See Schrimpsher, 143 N.C. App. at 465-66, 546 S.E.2d at 411 (reversing restitution portion of a juvenile disposition order where trial court made no finding with respect to value of damage caused by respondent juvenile). The adjudication order is, however, affirmed.

Affirmed in part; vacated in part; and remanded.

Judges TYSON and STEPHENS concur.

Report per Rule 30(e).


Summaries of

In Matter of D.S.B

North Carolina Court of Appeals
Feb 19, 2008
188 N.C. App. 847 (N.C. Ct. App. 2008)
Case details for

In Matter of D.S.B

Case Details

Full title:IN RE D.S.B

Court:North Carolina Court of Appeals

Date published: Feb 19, 2008

Citations

188 N.C. App. 847 (N.C. Ct. App. 2008)