Opinion
No. COA01-547
Filed 5 March 2002 This case not for publication
Appeal by juvenile from adjudication and disposition orders entered 27 November 2000 by Judge Craig Croom and 18 December 2000 by Judge Robert B. Rader in Wake County District Court. Heard in the Court of Appeals 4 February 2002.
Attorney General Roy Cooper, by Assistant Attorney General Bertha L. Fields, for the State.
Law Offices of James R. Ansley, by Robert J. Clements, for the respondent appellant.
Wake County No. 00 J 657.
In a juvenile petition filed 13 September 2000, the State charged thirteen-year-old Thomas Ryan Kopach ("respondent") with communicating threats in violation of section 14-277.1 of the North Carolina General Statutes. The matter was heard on 27 November 2000, at which time the State presented evidence tending to show the following: The victim, a twelve-year-old male, and respondent both attended North Garner Middle School in Wake County, North Carolina. The victim testified that on 31 August 2000, as he was entering the school with a friend, respondent "cut in front of me and said he was going to `f' me up." The victim testified that respondent spoke "in a deep tone of voice[,]" "like in a voice when you want — when you're trying to get revenge." The victim explained that he was afraid of respondent because he had to pass through respondent's neighborhood when he walked to and from school, and "because [respondent] had brought the dog with him before, brought his dog and waited at the corner, waited for me."
Respondent denied that the incident occurred and further testified that the victim had confronted him on several prior occasions. Respondent testified that in one incident, the victim took his keys and teased him. On another occasion, respondent stated that the victim approached him in health class and called him the "`n' word for some reason."
Respondent's father, Thomas Russell Kopach ("Kopach"), also testified. Kopach agreed that the relationship between respondent and the victim had been "an ongoing problem" and that he had walked his son to school many times "[f]or his safety." Kopach testified that he confronted the victim once and told him that, "[i]f you don't leave my son alone, you are going to have big problems, real big problems." On cross-examination, the following exchange occurred:
Q: Mr. Kopach, you were pretty upset about your son being charged in this incident, weren't you?
A: As upset as any parent.
Q: Did you tell Officer McIver that you were going to call David Duke — —
. . . .
Q: — and that you were a member of No Fear?
. . . .
Q: Did you tell Officer McIver that, sir?
A: I may have.
Q: Did you call David Duke?
A: No, I haven't.
. . . .
Q: Mr. Kopach, did you tell Officer McIver that you could sure use some money in your pockets and that Officer McIver could tell everybody that, that you could use a million dollars?
. . . .
A: No, I did not tell Officer McIver that. I think you have the words twisted there.
On 27 November 2000, the trial court adjudicated respondent a delinquent juvenile for communicating threats. On 18 December 2000, a disposition order was entered placing respondent on supervised probation for six months. Respondent appeals.
The sole issue on appeal is whether the trial court erred by allowing the State to conduct certain cross-examination of respondent's father. For the reasons set forth herein, we affirm the trial court.
Respondent contends the trial court erred in overruling his objections to the State's cross-examination of Kopach. Specifically, respondent objected to Kopach's testimony regarding his plans to contact David Duke, his membership in David Duke's group, the "National Organization for European-American Rights" or "No Fear," and Kopach's statement that he could "use a million dollars." Respondent argues that the statements were irrelevant, unduly prejudicial and constituted reversible error. Respondent asserts that the statements were made by his father, not by him, and were therefore not probative as to whether he threatened the victim. Respondent further argues that the statements were inflammatory and only served to destroy the credibility of respondent and his father.
After careful review of the record, briefs and contentions of the parties, we affirm the trial court. "In a bench trial, the court is presumed to disregard incompetent evidence." In re McMillon, 143 N.C. App. 402, 411, 546 S.E.2d 169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001). "Where there is competent evidence to support the court's findings, the admission of incompetent evidence is not prejudicial." Id. In the instant case, there is no indication that the trial court relied on the controverted testimony in determining that respondent communicated threats. Moreover, there is sufficient evidence to support the trial court's findings. The victim identified the respondent in court and testified that respondent threatened to "f" him up. Donald Plush, a witness to the incident, corroborated the victim's testimony. The victim further testified that the threats caused him to be afraid. Thus, even assuming arguendo that the cross-examination was improper, respondent has failed to show any prejudice to his case. We therefore overrule respondent's assignment of error and affirm the trial court.
Affirmed.
Chief Judge EAGLES and Judge McCULLOUGH concur.
Report per Rule 30(e).