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holding that "to defeat a charge of affray based on self-defense, a juvenile must be ‘without fault in provoking, engaging in, or continuing a difficulty with another,’ and must retreat from any non-felonious assault if she has the means to do so" (quoting In re Wilson, 153 N.C.App. 196, 568 S.E.2d 862, 863 (2002) )
Summary of this case from C.M. v. StateOpinion
No. 05-296.
Filed 18 October 2005.
Alamance County No. 04 J 81.
Appeal by Juvenile from order entered 3 November 2004 by Judge Bradley R. Allen, Sr. in District Court, Alamance County. Heard in the Court of Appeals 3 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan and Special Deputy Attorney General William P. Hart, for the State. James M. Bell, for juvenile-appellant.
Where the district court selects a disposition for a juvenile that is authorized by statute, this Court will not overturn its decision unless it "is so arbitrary that it could not have been the result of a reasoned decision." In re Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002) (citations and quotation marks omitted). In this case, the trial court selected a disposition within the authorized statutory range. Because we find no abuse of discretion, we affirm the decision of the trial court.
A juvenile petition was filed 13 April 2004, alleging Juvenile was involved in an affray at Broadview Middle School (Broadview) by engaging in a fist fight with another student, C.J., on 2 February 2004. Although not included in the record on appeal, it appears a second petition charged Juvenile with an affray at the school on 3 September 2003. The district court adjudicated Juvenile delinquent as to the incident on 2 February 2004, and imposed a disposition which included twelve months of probation plus counseling and community service. The court found Juvenile not delinquent as alleged in the second petition. Juvenile gave notice of appeal in open court.
C.J. testified that on 2 February 2004, she was approached by Juvenile and her friend, I.H., in the Broadview cafeteria during the lunch period. I.H. told C.J. that Juvenile wanted to know what C.J.'s problem was. C.J. asked Juvenile what she meant and then followed I.H. and Juvenile to a vending machine where Juvenile "got something to drink." C.J. again asked Juvenile what she meant by asking what C.J.'s problem was. Juvenile walked past C.J., bumping her "real hard" with her shoulder. C.J. responded by pushing Juvenile. Juvenile dropped her drink and pushed C.J. to the ground. When C.J. stood up, the two girls fought until they were separated by a teacher and the school's principal, Dr. Meg Sheehan. Sheehan testified that she was forced to physically intervene after the girls ignored her verbal commands to stop fighting.
Sheehan also testified that on 3 September 2003, Juvenile fought with B.J., who was a friend of C.J. Sheehan arrived after the fight had been broken up by teachers. The girls continued to yell profanity at each other while being restrained. Juvenile told Sheehan that another girl had instigated the fight by pushing Juvenile's hand into B.J.
Juvenile adduced testimony from I.H. regarding the fight on 2February 2004. I.H. stated that Juvenile saw C.J. staring at her with the "bad eye" in the cafeteria. Because Juvenile did not understand English, she asked I.H. to find out from C.J. "what is her problem." C.J. did not respond to I.H.'s query but followed Juvenile when she went to get some water. C.J. asked Juvenile what problem she had with her. Juvenile ignored C.J. and "turned around to go sit down." C.J. then hit Juvenile from behind. As the girls looked at each other, C.J. pushed Juvenile again. Juvenile pushed C.J. to the ground. When C.J. stood up, "she wanted to hit" Juvenile. Juvenile "tried to defend herself and grabbed [C.J.] by the hair." The teachers then intervened and separated them.
Other witnesses, including Juvenile, testified regarding the incident of 3 September 2003.
As noted above, the district court found the State had failed to prove Juvenile was delinquent based upon her 3 September 2003 altercation with B.J. In adjudicating Juvenile delinquent for the affray on 2 February 2004, the trial court noted the conflicting evidence offered by C.J. and I.H. but found beyond a reasonable doubt as follows:
. . . [T]he two juveniles, the two girls, [C.J.] and [B. R-D.], pushed each other and [Juvenile] pushed [C.J.] down. That when [C.J.] got up, . . . they started swinging at each other as testified to by the principal who observed this. That the principal immediately ran over, told them to stop. Neither girl stopped. That both continued to engage in a fight. That this the Court finds is a public place, and it was to the terror of the approximately 250 students in the cafeteria. That the only time the girls stopped fighting is when the principal and another teacher physically separated them. The Court finds that this is an affray.
The court further found that Juvenile "initiated the altercation in the cafeteria[,] [t]hat she had an opportunity to retreat, and she chose to voluntarily engage in the fighting in the cafeteria."
From the 3 November 2004 adjudication and disposition orders, Juvenile appeals.
Juvenile first argues that the trial court erred in finding her delinquent for participating in an affray on 2 February 2004, inasmuch as "the evidence established that [she] was acting in self-defense and did not initiate the affray." She characterizes the trial court's finding that she initiated the fight with C.J. as "contrary to the evidence" or, "at the very least," as not proved beyond a reasonable doubt. However, Juvenile did not move to dismiss the delinquency petition at the conclusion of the State's evidence or at the conclusion of all the evidence. She "is therefore precluded from challenging the sufficiency of the evidence presented at trial." In re Davis, 126 N.C. App. 64, 66, 483 S.E.2d 440, 442 (1997) (citing State v. Elliott, 69 N.C. App. 89, 316 S.E.2d 632 (1984)); In re Rikard, 161 N.C. App. 150, 155, 587 S.E.2d 467, 470 (2003); N.C.R. App. P. 10(b)(3).
Moreover, to defeat a charge of affray based on self-defense, a juvenile must be "without fault in provoking, engaging in, or continuing a difficulty with another," In re Wilson, 153 N.C. App. 196, 198, 568 S.E.2d 862, 863 (2002), and must retreat from any non-felonious assault if she has the means to do so. State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998). Although the trial court did not determine who struck the first blow in Juvenile's fight with C.J., it expressly found that Juvenile "initiated the altercation in the cafeteria" and that she "had an opportunity to retreat and she chose to voluntarily engage in the fighting." The State's evidence supported a finding that Juvenile provoked and willingly participated in the fight in a public area populated by approximately 250 students. See generally Wilson, 153 N.C. App. at 198-99, 568 S.E.2d at 863 (noting that "the credibility of the witnesses and the weight of the evidence was for the trial court"); In re Drakeford, 32 N.C. App. 113, 118, 230 S.E.2d 779, 782 (1977) (defining affray as "a fight between two or more persons in a public place so as to cause terror to the people").
Juvenile next claims that the trial court denied her sufficient time to present a defense at the hearing, in violation of her constitutional rights. See State v. Rogers, 352 N.C. 119, 125, 529 S.E.2d 671, 675 (2000) ("`To establish a constitutional violation, a defendant must show that he did not have ample time to . . . present his defense.'") (quoting State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 337 (1993)). The transcript reveals, however, that Juvenile's counsel did not request additional time from the trial court to examine witnesses or to call additional witnesses; nor did counsel assert any constitutional claim concerning Juvenile's right to sufficient time to present a defense. It is well established that "[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001); accord State v. Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). "Because [juvenile] did not raise these constitutional issues at trial, [s]he has failed to preserve them for appellate review and they are waived." State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005).
We note the transcript reflects no denial by the trial court of Juvenile's right to present her defense. Although the trial court refused to allow Juvenile's mother to testify about an unrelated incident involving C.J., which occurred some time after 3 September 2003, the trial court placed no other limitations on Juvenile's evidence.
In her final assignment of error, Juvenile challenges the trial court's decision to place her on twelve months of probation. She concedes the trial court had discretion in setting the term of probation but insists the trial court had no grounds to extend her probation beyond six months, in light of her minor offense and complete lack of delinquent history.
Based on her minor offense and low delinquency history, Juvenile was subject to a Level I community disposition, to include "any of the dispositional alternatives" set forth in section 7B-2506(1)-(13) and (16) of the North Carolina General Statutes. N.C. Gen. Stat. § 7B-2508 (2004). Under section 7B-2506(8) of the North Carolina General Statutes, the trial court was authorized to place juvenile on probation "for a period not to exceed one year[.]" N.C. Gen. Stat. § 7B-2510(c) (2004). Where the district court selects a disposition that is authorized by statute, this Court will not overturn its decision unless it "is so arbitrary that it could not have been the result of a reasoned decision." In re Robinson, 151 N.C. App. at 737, 567 S.E.2d at 229 (citations and quotation marks omitted).
We find no abuse of discretion. After adjudicating Juvenile delinquent, the trial court recessed the hearing overnight in order to consider the record and "make sure that whatever the disposition on this is appropriate." Based on the court counselor's report, which reflected Juvenile's numerous school suspensions and fights, as well as her prior placement in the Mexican correctional system when she was thirteen years old, the trial court concluded that six months of probation would not provide "enough time for her to make some significant changes in her life." The trial court expressed concern that Juvenile "is on the road to being seriously injured or being through the criminal justice system for the rest of her life . . . unless something is done at this point." Its disposition was neither arbitrarily chosen nor unreasonable.
Affirmed.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).