Opinion
No. COA09-1248
Filed 1 June 2010 This case not for publication
Appeal by Respondent from an order entered 8 April 2009 by Judge William A. Marsh, III, in Durham County District Court. Heard in the Court of Appeals 24 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Ebony J. Pittman, for the State. Winifred H. Dillon, for Respondent-Appellant.
Durham County No. 08 J 32.
C.B. appeals from a trial court order adjudicating him delinquent. Because the trial court appropriately determined that all facts alleged in the petition were proven beyond a reasonable doubt, we affirm and remand for correction of a clerical error.
Juvenile's initials are used to protect his identity.
On 20 March 2009, C.B. was attending class at Hillside New Tech High School in Durham County, North Carolina. While in science class, C.B. requested permission from his teacher, Emily Rathmell, to go to the restroom. C.B's request was denied. Ten minutes later, C.B. again asked to go to the restroom, and his request was denied. After his second request to use the restroom was denied, C.B. gathered his books, placed them in his book bag, and began walking toward the classroom's exit. However, before C.B. could leave the classroom, Rathmell positioned herself in the doorway of the exit, blocking C.B.'s path. Noticing the commotion from across the hall, another teacher, Angela Taylor, came to Rathmell's assistance. Rathmell and Taylor explained to C.B. that school policy required him to use the restroom during lunch or between classes. The teachers were joined by administrator, Kelsey Lodge, who reiterated the statements made by Rathmell and Taylor. Thereafter, C.B. grabbed Rathmell's arm, "pushed [her] into the door frame and barreled his way through the doorway on his way out."
In a petition filed 23 March 2009, C.B. was charged with assault on a government officer/employee. Following a hearing on 8 April 2009, C.B. was adjudicated delinquent. During the hearing, C.B. made motions to dismiss at the close of the State's case and at the close of the trial. C.B. appeals the adjudication arguing that: (I) the trial court erroneously failed to find that the allegations of the petition were proven beyond a reasonable doubt; (II) the trial court erroneously failed to grant his motions to dismiss; and (III) the trial court erred by finding that he admitted the petition's allegations.
I.
C.B. first argues that the trial court erroneously failed to find that the facts alleged in the petition were proved beyond a reasonable doubt. We disagree.
"The allegations of a petition alleging the juvenile is delinquent shall be proved beyond a reasonable doubt." N.C. Gen. Stat. § 7B-2409 (2007). The North Carolina General Assembly has also provided that "[i]f the court finds that the allegations in the petition have been proved as provided in G.S. 7B-2409, the court shall so state[.]" N.C. Gen. Stat. § 7B-2411 (2007). "The trial court's standard of proof in a juvenile delinquency proceeding must be reflected in the record, either orally or in writing." In re B.E., 186 N.C. App. 656, 661, 652 S.E.2d 344, 347 (2007). "[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 Walker, 83 N.C. App. 46, 47, 348 S.E.2d 823, 824 (1986) (citations omitted).
Effective 1 December 2009, N.C. Gen. Stat. § 7B-2411 was amended to read: "If the court finds that the allegations in the petition have been proved as provided in G.S. 7B-2409, the court shall so state in a written order of adjudication. . . ." It is unclear whether an oral statement of the standard of proof remains acceptable. Because the adjudication in this case took place before the amendment of the statute, it is not at issue in this case.
In the instant case, the trial court appropriately found that the facts alleging that C.B. was delinquent were proven beyond a reasonable doubt. At the adjudication hearing, the trial court found C.B.'s description of the events to be "incredible" and credited the testimony of the teachers who testified at the hearing. Thereafter, the trial court stated: "I do find him responsible and adjudicate him [for] assault on a government official." In the adjudication order, the trial court found that "[t]he following facts have been proven beyond a reasonable doubt:. . . . That the juvenile denied the allegation of assault on a government official, after a trial the juvenile has been found delinquent of the allegations on [a]ssault on a government official. . . ." While the court's oral statement may have omitted the correct standard of proof, the standard of proof was appropriately stated in the written findings of fact.
C.B. argues that the trial court's statement of the applicable standard of proof is erroneously ambiguous. In support of his argument, C.B. cites In re B.E. There, the trial court adjudicated the juvenile as delinquent for the offense of committing indecent liberties between children. In re B.E., 186 N.C. App. at 657, 652 S.E.2d at 345. In its adjudication order, the trial court determined that the juvenile committed the actions alleged in the petition by clear, cogent and convincing evidence. Id. at 659, 652 S.E.2d at 346. However, in several oral statements the trial court indicated that the appropriate standard of proof was "beyond a reasonable doubt." Id. at 660, 652 S.E.2d at 346-47. On review, our Court held that "[t]he trial court must unequivocally state the standard of proof in its order pursuant to N.C. Gen. Stat. § 7B-2411 (2005)." Id. at 661, 652 S.E.2d at 347.
Later, in In re C.B., 187 N.C. App. 803, 654 S.E.2d 21 (2007), the trial court found that the facts listed in the adjudication order had been proven beyond a reasonable doubt. Id. at 806, 652 S.E.2d at 23. However, in the section of the order specifically referencing the criminal actions committed by the juvenile, the trial court stated that those facts were proved by "clear, cogent and convincing evidence." Id. at 806, 652 S.E.2d at 24. Citing In re B.E., our Court again held that the trial court failed to unequivocally state the appropriate standard of proof. Id. at 807, 652 S.E.2d at 24.
Here, unlike the cases cited by C.B., the trial court never created an ambiguity by citing two standards of review. The trial court orally stated that C.B. was responsible for the assault and then in the written order, C.B. was adjudicated delinquent beyond a reasonable doubt. The trial court unequivocally stated the correct standard of proof in its written order. Because the record clearly reflects that the trial court applied the appropriate standard of review, we affirm the trial court's ruling.
II.
C.B. next argues that the trial court erred in failing to grant his motions to dismiss made at the hearing. We disagree.
"[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) (citation omitted). "The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference of fact which may be drawn from the evidence." Id. (citation omitted). The State must show that C.B. "[assaulted] an officer or employee of the State or any political subdivision of the State, when the officer or employee is discharging or attempting to discharge his official duties[.]" N.C. Gen. Stat. § 14-33(c)(4) (2007). "In North Carolina, there is no statutory definition of assault and the crime remains one governed by the rules of the common law." State v. Hill, 6 N.C. App. 365, 369, 170 S.E.2d 99, 102 (1969). North Carolina authority has generally recognized two types of common law assault:
In this State a criminal assault may be accomplished either by an overt act on the part of the accused evidencing an intentional offer or attempt by force and violence to do injury to the person of another or by the "show of violence" on the part of the accused sufficient to cause a reasonable apprehension of immediate bodily harm on the part of the person assailed which causes him to engage in a course of conduct which he would not otherwise have followed.
State v. O'Briant, 43 N.C. App. 341, 344, 258 S.E.2d 839, 841-42 (1979).
The first type of assault emphasizes the intent or state of mind of the person accused, and the second places emphasis upon the apprehension of the assailed individual and the reasonableness of that apprehension. Id. at 344-45, 258 S.E.2d at 842. "A battery always includes an assault, and is an assault whereby any force is applied, directly or indirectly, to the person of another." State v. Britt, 270 N.C. 416, 418, 154 S.E.2d 519, 521 (1967).
Here, the State presented substantial evidence that C.B. assaulted his teacher in violation of N.C. Gen. Stat. § 14-33(c)(4). The State's evidence showed that after being denied permission to go to the restroom, C.B. pushed his teacher into the frame of a door. C.B. used unlawful force to remove Rathmell from his path and thus committed an assault. Accordingly, we hold that the trial court properly denied C.B.'s motion to dismiss.
III.
Finally, C.B. argues that the trial court erred by finding that C.B. admitted the allegations of the petition. We agree.
A clerical error is "`[a]n error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.'" State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quoting Black's Law Dictionary 563 (7th ed. 1999)).
At the beginning of the hearing, C.B. expressly denied the allegations against him. In its order, the trial court erroneously marked a box indicating that "[t]he juvenile admitted the allegation(s) contained in the petition in accordance with the procedures required by G.S. 7B-2407." However, in a section of the order listing facts that have been proven beyond a reasonable doubt, the trial court found that "the juvenile denied the allegation of [a]ssault on a government official. . . ." While the trial court's determination that C.B. confessed to the allegations may have been erroneous, the mistake was clerical in nature. See State v. Lark, ___, N.C. App. ___, ___, 678 S.E.2d 693, 702 (2009) (holding that inadvertently marking a box on a judgment form is a clerical error).
"Accordingly, we remand the present case to the trial court for the limited purpose of correcting the clerical errors in the [adjudication order]." Id. at ___, 678 S.E.2d at 703.
Affirmed; Remanded.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).