Opinion
NO. COA11-138
09-20-2011
IN THE MATTER OF J.M.
Attorney General Roy Cooper, by Assistant Attorney General Eryn E. Linkous, for the State. Ryan McKaig, for juvenile-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Johnston County No. 09 JB 81
Appeal by respondent from adjudication and disposition orders entered 11 October 2010 by Judge Addie H. Rawls in Johnston County District Court. Heard in the Court of Appeals 16 August 2011.
Attorney General Roy Cooper, by Assistant Attorney General Eryn E. Linkous, for the State.
Ryan McKaig, for juvenile-appellant.
ERVIN, Judge.
Juvenile J.M. appeals from orders adjudicating him delinquent based upon findings that he was responsible for resisting, delaying, and obstructing a public officer and carrying a concealed weapon. On appeal, Juvenile argues that the trial court (1) erred by finding him responsible for resisting, delaying, and obstructing a public officer on the grounds that the juvenile petition purporting to allege the commission of that offense was fatally defective and that the evidence did not support the trial court's determination that he had resisted, delayed, or obstructed a public officer and (2) by admitting testimony that the investigating officer seized a set of brass knuckles from Juvenile during a search incident to arrest. After careful consideration of Juvenile's challenges to the trial court's orders in light of the record and the applicable law, we conclude that the challenged adjudication orders should be reversed and that this case should be remanded to the Johnston County District Court for further proceedings not inconsistent with this opinion.
The trial court also heard and decided a juvenile petition alleging that Juvenile committed a simple assault at the time of the hearing at issue in this case. However, we need not discuss the facts relating to that proceeding given that Juvenile has not advanced any challenge to the handling of that allegation for our consideration on appeal.
I. Factual Background
A. Substantive Facts
On 3 September 2010, Officer Brian K. O'Branovich of the Smithfield Police Department was patrolling an area near certain apartments located on Caswell and Bridge Streets in Smithfield, which he described as a "known drug area." At approximately 7:20 p.m. on that date, Officer O'Branovich observed a group of people, including Juvenile, standing near the apartments. As Officer O'Branovich approached the group, its members dispersed and ran in different directions, causing Officer O'Branovich to demand that they stop. During his pursuit of the group, Officer O'Branovich encountered and stopped Juvenile. Aside from his flight from Officer O'Branovich, Juvenile had not done anything suspicious prior to his detention.
After his detention, Juvenile declined to give Officer O'Branovich any identifying information. Instead, Juvenile was belligerent, uncooperative, and used profane language. Officer O'Branovich placed Juvenile under arrest for resisting, delaying, and obstructing a public officer and searched Juvenile incident to arrest. During the course of this search, Officer O'Branovich found a set of brass knuckles in Juvenile's right rear pants pocket.
B. Procedural History
On 10 September 2010, Officer O'Branovich filed juvenile petitions alleging that Juvenile should be adjudicated delinquent for resisting, delaying, and obstructing a public officer and carrying a concealed weapon. Adjudication and disposition hearings were conducted before the trial court on 11 October 2010. At the conclusion of those proceedings, the trial court found Juvenile responsible for resisting, delaying, and obstructing a public officer and carrying a concealed weapon. Based upon those determinations, the trial court concluded that Juvenile was subject to its dispositional authority, determined that a Level 2 disposition was appropriate, and ordered that Juvenile be continued on probation. Juvenile noted an appeal to this Court from the trial court's adjudication and dispositional orders.
II. Legal Analysis
Although the State argues that "[t]he issues presented in the juvenile's brief do not clearly correlate to the arguments presented as Proposed Issues in the record" and were not, for that reason, properly preserved for appellate review, N.C. R. App. P. 10(b) provides, in pertinent part, that, "proposed issues on appeal . . . shall not limit the scope of the issues presented on appeal in an appellant's brief."
A. Sufficiency of Petition Alleging Resisting a Public Officer
On appeal, Juvenile contends that the juvenile petition that attempted to charge him with resisting, delaying, and obstructing a public officer was fatally defective on the grounds that it failed to properly allege the duty that Officer O'Branovich was discharging or attempting to discharge at the time of Juvenile's alleged misconduct. We agree.
"In a juvenile delinquency action, the juvenile petition '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.'" In re S.E.S., 180 N.C. App. 151, 153, 636 S.E.2d 277, 280 (2006) (quoting In re Griffin, 162 N.C. App. 487, 493, 592 S.E.2d 12, 16 (2004)). "'When a petition is fatally deficient, it is inoperative and fails to evoke the jurisdiction of the court.'" In re B.D.W., 175 N.C. App. 760, 761, 625 S.E.2d 558, 560 (2006) (quoting In re J.F.M. & T.J.B., 168 N.C. App. 143, 150, 607 S.E.2d 304, 309, appeal dismissed and disc. review denied, 359 N.C. 411, 612 S.E.2d 320 (2005)). "Because juvenile petitions are generally held to the standards of a criminal indictment, we consider the requirements of the indictments of the offenses at issue." Id. As a result of the fact that fatal defects in a juvenile petition are jurisdictional, challenges to the sufficiency of such petitions may be raised at any time despite the juvenile's failure to raise this issue before the trial court. S.E.S., 180 N.C. App. at 153, 636 S.E.2d at 279; State v. Call, 353 N.C. 400, 429, 545 S.E.2d 190, 208 (citation omitted), cert. denied, 534 U.S. 1046, 122 S. Ct. 628, 151 L. Ed. 2d 548 (2001). We review challenges to the sufficiency of an indictment or juvenile petition using a de novo standard of review. State v. Marshall, 188 N.C. App. 744, 748, 656 S.E.2d 709, 712 (2007), disc. review denied, 362 N.C. 368, 661 S.E.2d 890 (2008).
N.C. Gen. Stat. § 15A-924(a) provides, in pertinent part, that:
A criminal pleading must contain . . . [a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.As a result, a valid indictment must charge "all the essential elements of the alleged criminal offense." State v. Lewis, 58 N.C. App. 348, 354, 293 S.E.2d 638, 642 (1982) (citing State v. Morgan, 226 N.C. 414, 415, 38 S.E.2d 166, 167 (1946)), cert. denied, 311 N.C. 766, 321 S.E.2d 152 (1984). Put another way, a valid indictment or other charging instrument must allege "all the facts necessary to meet the elements of the offense." State v. Ellis, 168 N.C. App. 651, 655, 608 S.E.2d 803, 806 (2005) (citing State v. Alston, 310 N.C. 399, 407, 312 S.E.2d 470, 475 (1984)).
According to N.C. Gen. Stat. § 14-223, a person is guilty of resisting, delaying, and obstructing a public officer when he or she "willfully and unlawfully resist[s], delay[s] or obstruct[s] a public officer in discharging or attempting to discharge a duty of his office." Thus, an indictment for the charge of resisting a public officer must "'1) identify the officer by name, 2) indicate the official duty being discharged, and 3) indicate generally how defendant resisted the officer.'" J.F.M., 168 N.C. App. at 150-51, 607 S.E.2d at 309 (quoting State v. Swift, 105 N.C. App. 550, 553, 414 S.E.2d 65, 67 (1992)). "In the offense of resisting an officer, the resisting of the public officer in the performance of some duty is the primary conduct proscribed by that statute and the particular duty that the officer is performing while being resisted is of paramount importance and is very material to the preparation of the defendant's defense." State v. Waller, 37 N.C. App. 133, 135, 245 S.E.2d 808, 810 (1978) (quotation omitted). Thus, the Supreme Court and this Court have invalidated indictments or other charging instruments that failed to allege the specific duty that the officer was discharging or attempting to discharge at the time that the defendant allegedly resisted, delayed, or obstructed the performance of his or her duties. State v. Dunston, 256 N.C. 203, 203-04, 123 S.E.2d 480, 480-81 (1962) (holding that an indictment alleging that "[the officer] was then and there attempting to discharge and discharging the duty of his office by hitting said officer in the stomach and kicking him on the legs" was fatally defective for failing to state the duty the officer was discharging or attempting to discharge); State v. Wells, 59 N.C. App 682, 684-85, 298 S.E.2d 73, 75 (1982) (holding that an indictment alleging that the defendant "did resist and delay [an officer] performing the duties of his office by striking said officer with his hands and fist" was fatally defective for failing to describe the duty the officer was discharging or attempting to discharge).
The juvenile petition that attempted to charge Juvenile with resisting, delaying, and obstructing a public officer alleged that:
[T]he juvenile did unlawfully and willfully resist, delay and obstruct . . . B.K. O'Branovich, a public officer holding the office of . . . Smithfield Police Officer,. . . [b]y running from Sm[i]thfield Police Department when he was demanded to stop.A careful reading of the juvenile petition filed against Juvenile in this case reveals that the petition fails to describe any duty that Officer O'Branovich was discharging or attempting to discharge at the time of Juvenile's flight. The juvenile petition at issue in this case is indistinguishable in any meaningful way from the charging instrument that this Court found to be insufficient in Ellis, 168 N.C. App. at 655-56, 608 S.E.2d at 806, where we concluded that an indictment alleging that an officer was "attempting to discharge his duties of his office to wit: by running from Agent Jason Locklear and fighting Agent Jason Locklear" failed to adequately describe the duty the arresting officer was discharging or attempting to discharge. As was the case in Ellis, the petition at issue here fails to describe any duty that Officer O'Branovich was discharging or attempting to discharge at the time of Juvenile's flight and focuses exclusively on Juvenile's alleged conduct instead. As a result, since the juvenile petition purporting to charge Juvenile with resisting, delaying, and obstructing a public officer failed to allege all of the essential elements of that offense, the trial court lacked jurisdiction over Juvenile, rendering that portion of its adjudication and disposition orders relating to the issue of Juvenile's responsibility for resisting, delaying, and obstructing a public officer void for lack of jurisdiction. Thus, the trial court's adjudication and disposition orders finding Juvenile responsible for resisting, delaying and obstructing a public officer must be reversed.
At the time, the officer was discharging and attempting to discharge a duty of his/her office . . . [t]his subject was in a known drug area and when he noticed the marked patrol unit he started to run. I demanded the subject to stop running and continued on ignoring my commands.
In light of our determination that the trial court lacked jurisdiction over the charge that Juvenile resisted, delayed, or obstructed a public officer, we need not address the extent to which the evidence, taken in the light most favorable to the State, sufficed to support the trial court's decision to adjudicate Juvenile responsible for committing that offense.
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B. Testimony Concerning Carrying a Concealed Weapon
Secondly, Juvenile contends that the trial court committed plain error by allowing Officer O'Branovich to testify that he found brass knuckles on Juvenile during a search incident to Juvenile's arrest. More specifically, Juvenile contends that, because he was unlawfully arrested for resisting, delaying, and obstructing a public officer, the search incident to his arrest that resulted in the seizure of the brass knuckles which were the focus of the carrying a concealed weapon charge was unlawful as well. Once again, we believe that Juvenile's argument has merit.
Juvenile did not object to the admission of Officer O'Branovich's testimony concerning the seizure of the brass knuckles at the adjudication hearing or move to suppress the evidence seized from his person at the time of his arrest prior to that proceeding. Therefore, Juvenile failed to properly preserve his challenge to the validity of the search of his person by Officer O'Branovich for appellate review. For that reason, we must evaluate Juvenile's claim utilizing a plain error standard of review. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Plain error is defined as "'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.'" State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). Under the "plain error" standard of review, the appealing party must establish "(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial" as a prerequisite for obtaining appellate relief. Bishop, 346 N.C. at 385, 488 S.E.2d at 779. As a result, the admission of the challenged evidence would only rise to the level of plain error in the event that its admission had a "probable impact" on the finding of guilt. Odom, 307 N.C. at 661, 300 S.E.2d at 378-79.
An officer may make a warrantless arrest if it is based upon probable cause. State v. Burton, 108 N.C. App. 219, 225, 423 S.E.2d 484, 488 (1992), appeal dismissed and disc. review denied, 333 N.C. 576, 429 S.E.2d 574 (1993). "Probable cause for an arrest has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious [person] in believing the accused to be guilty[.]" State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984) (internal quotation marks omitted). In order to establish the existence of the probable cause needed to support a warrantless arrest, it is "not necessary to show that the offense was actually committed, only that the officer had a reasonable ground to believe it was committed." State v. Thomas, 127 N.C. App. 431, 433, 492 S.E.2d 41, 42 (1997). The extent to which the requisite probable cause exists hinges upon the "factual and practical considerations of everyday life on which reasonable and prudent [people] . . . act." State v. Crawford, 125 N.C. App. 279, 281, 480 S.E.2d 422, 424 (1997) (quotation omitted). After a police officer has executed a lawful arrest, based upon probable cause, he may conduct a warrantless search incident to that arrest. See State v. Logner, 148 N.C. App. 135, 139, 557 S.E.2d 191, 194 (2001). "If there is no probable cause to arrest, evidence obtained as a result of that arrest and any evidence resulting from the defendant's having been placed in custody, should be suppressed." State v. Tappe, 139 N.C. App. 33, 36-37, 533 S.E.2d 262, 264 (2000) (citing State v. Pope, 333 N.C. 106, 113-14, 423 S.E.2d 740, 744 (1992)). As a result, in order to have conducted a valid search of Juvenile incident to arrest, Officer O'Branovich must have had probable cause to believe that Juvenile had resisted, delayed, or obstructed a public officer at the time that he placed him under arrest.
The elements of resisting, delaying, or obstructing a public officer in violation of N.C. Gen. Stat. § 14-223 are that:
(1) the victim was a public officer;State v. Dammons, 159 N.C. App. 284, 294, 583 S.E.2d 606, 612 (citing N.C. Gen. Stat. § 14-223), disc. review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382 (2004). "The third element of the offense presupposes lawful conduct of the officer in discharging or attempting to discharge a duty of his office." State v. Sinclair, 191 N.C. App. 485, 489, 663 S.E.2d 866, 870 (2008) (citation omitted). Although an individual's flight from a lawful investigatory stop "may provide probable cause to arrest an individual for violation of [N.C. Gen. Stat. §] 14-223 [,]" an individual's flight from a consensual encounter or from an unlawful investigatory stop does not supply the requisite probable cause. State v. Joe, ____ N.C. App. ____, ____, 711 S.E.2d 842, 845 (2011) (citation and internal quotation omitted). As a result, in order to have lawfully arrested Juvenile for resisting, delaying, or obstructing a public officer, Officer O'Branovich must have had probable cause to believe that Juvenile fled from a lawful investigative detention.
(2) the [juvenile] knew or had reasonable grounds to believe that the victim was a public officer;
(3) the victim was discharging or attempting to discharge a duty of his office;
(4) the [juvenile] resisted, delayed, or obstructed the victim in discharging or attempting to discharge a duty of his office; and
(5) the [juvenile] acted willfully and unlawfully, that is intentionally and without justification or excuse.
"An investigatory 'stop' is '[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information.'" Joe, ____ N.C. App. at ____, 711 S.E.2d at 846. "An investigatory stop must be justified by 'a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.'" State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (quoting Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357, 362 (1979)). In other words, "in order to conduct a warrantless, investigatory stop, an officer must have reasonable and articulable suspicion of criminal activity." State v. Hughes, 353 N.C. 200, 206-07, 539 S.E.2d 625, 630 (2000) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968)). The only prerequisite for a valid investigative detention is a "minimal level of objective justification, something more than an 'unparticularized suspicion or hunch.'" Watkins, 337 N.C. at 442, 446 S.E.2d at 70 (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989)).
After carefully reviewing the record and the parties' briefs, we find that our recent decisions in Sinclair, 191 N.C. App. at 485, 663 S.E.2d at 866, and Joe, ____ N.C. App. at ____, 711 S.E.2d at 842, are controlling for purposes of this case. In Sinclair, a uniformed officer and a plain-clothes agent observed the defendant sitting in a "well known drug activity area" among a group of "six to ten other people." Sinclair, 191 N.C. App. at 487, 663 S.E.2d at 869. After the officer approached the defendant and said, "'let me talk to you,'" the defendant "stood up[,] . . . took two steps toward [the officer], and said, 'Oh, you want to search me again, huh?'" Id. When the officer indicated that he wanted to search the defendant and continued walking toward him, the defendant "stopped ten or twelve feet from [the officer], 'quickly shoved both of his hands in his front pockets and then removed them,' . . . made his hands into fists and took a defensive stance." Id. As the officer got closer, the defendant said, "'Nope. Got to go,' and 'took off running' across an adjacent vacant lot." Id. The officers chased the defendant, stopped him, took him into custody, and charged him with resisting, delaying, and obstructing an officer in violation of N.C. Gen. Stat. § 14-223. Id. at 487-88, 663 S.E.2d at 869. On appeal from the defendant's conviction, this Court concluded that, "considering all the circumstances surrounding the encounter prior to [Sinclair's] flight, a reasonable person would have felt at liberty to ignore [the officer's] presence and go about his business" and that, "[a]lthough [the defendant's] subsequent flight may have contributed to a reasonable suspicion that criminal activity was afoot thereby justifying an investigatory stop, [his] flight from a consensual encounter cannot be used as evidence that [the defendant] was resisting, delaying, or obstructing [the officer] in the performance of his duties." Id. at 490-91, 663 S.E.2d at 871. As a result, we found that there was no evidence that Sinclair acted "'unlawfully, that is . . . without justification or excuse[,]"' Id. at 491, 663 S.E.2d at 871 (quoting Dammons, 159 N.C. App. at 294, 583 S.E.2d at 612), and held that the trial court erred by denying the defendant's dismissal motion. Id. Moreover, we also stated that, "even if [the officer] was attempting to effectuate an investigatory stop, there [were] insufficient 'specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant[ed] [the] intrusion.'" Id. (quoting State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779, cert. denied, 444 U.S. 907, 100 S. Ct. 220, 62 L. Ed. 2d 143 (1979)).
Similarly, in Joe, a police officer riding in an unmarked van was patrolling an area surrounding an apartment complex in which he had personally made "no less than 10 drug arrests" and "had assisted with 'no less than 50 of those same type[s] of investigations in that area.'" Joe, ____ N.C. App. at ____, 711 S.E.2d at 843-44. Although the officer "described the apartment complex as a known drug area where he had made drug-related arrests in the past," he "had no specific information about drug activity at the complex on that date." Id. at ____, 711 S.E.2d at 847. "There was no evidence that [the officer] had [had any] prior dealings with" the defendant. Id. From the van, the officer observed the defendant standing alone at the corner of the apartment building. Id. at __ , 711 S.E.2d at 844. When the van came within 50 feet of the defendant, he "looked up," his eyes "got big when he [saw] the van," and "he immediately turned and walked behind the apartment building." Id. At that point, the officer got out of the van and went behind the apartment building to "engage in a consensual conversation" with the defendant. Id. When the officer got behind the building, he saw the defendant running away. Id. Although the officer yelled "police" several times in an attempt to get the defendant to stop, the defendant kept running, causing the officer to give chase while yelling "[p]olice, stop[.]" Id. The officer eventually stopped the defendant and ordered him to put his hands up, but the defendant "did not comply." Id. The officer "grabbed [the defendant's] arm, put him 'on his chest on the ground and handcuffed him[,]' and placed him under arrest for resisting a public officer." Id. On appeal, this Court, in reliance on Sinclair, concluded that, "considering all the circumstances surrounding the encounter prior to Defendant's flight, . . . a reasonable person would have felt at liberty to ignore [the officer's] presence and go about his business." Id. at ____, 711 S.E.2d at 847. In our opinion, we noted that, "[a]t the time [the defendant] turned and walked behind the apartment building, [the officer] was still inside the van, and a reasonable person would not have felt compelled to wait on the street corner . . . to determine if an officer inside the van desired to talk with him." Id. Accordingly, "[the defendant's] flight from a consensual encounter [could not] be used as evidence that Defendant was resisting, delaying, or obstructing [the officer] in the performance of his duties." Id. (citing Sinclair, 191 N.C. App. at 491, 663 S.E.2d at 871). As a result, we held that the record did not contain sufficient evidence to permit a finding that the defendant was guilty of resisting, delaying, and obstructing a public officer.
The facts at issue in this case are indistinguishable from those before us in Sinclair and Joe. The juvenile petition alleging that Juvenile resisted, delayed, and obstructed a public officer alleges that Juvenile "r[an] from Sm[i]thfield Police Department when he was demanded to stop." However, the record clearly establishes that, before fleeing, Juvenile had not been properly detained by Officer O'Branovich. For that reason, we believe that a reasonable person in Juvenile's position would have felt at liberty to go about his business rather than complying with Officer O'Branovich's instructions. See Joe, ____ N.C. App. at ____, 711 S.E.2d at 847.
Although Of ficer O'Branovich described the area in which these events occurred as a "known drug area," the record contains no indication that Officer O'Branovich had had any previous dealings with Juvenile; that he had observed any drug-related activity prior to attempting to detain members of the crowd, including Juvenile; or that he had any specific information to the effect that drug-related activity was occurring in the relevant area on that date. As a result, the only basis upon which an investigatory detention of Juvenile could have been justified prior to Juvenile's flight was the fact that Juvenile was standing with a group of other people in a "known drug area." Any investigatory stop of Juvenile based solely on that fact would have been impermissible. See State v. Butler, 331 N.C. 227, 234, 415 S.E.2d 719, 722-23 (1992) (stating that the mere fact that the defendant was standing with others on a corner known for drug-related activity did not, standing alone, justify an investigatory stop). Admittedly, a suspect's presence in a known drug area, coupled with evasive action, may provide the reasonable suspicion necessary for a valid investigatory stop. Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570, 576-77 (2000); Butler, 331 N.C. at 234, 415 S.E.2d at 722-23; State v. Willis, 125 N.C. App. 537, 542, 481 S.E.2d 407, 411 (1997). However, the record developed before the trial court in this case clearly shows that Juvenile was not subject to a lawful investigative detention prior to his flight. For that reason, the record fails to show that Juvenile acted "'unlawfully, that is . . . without justification or excuse,'" Joe, __ N.C. App. at __ , 711 S.E.2d at 847 (quoting Dammons, 159 N.C. App. at 294, 583 S.E.2d at 612), at the time that he ran from Officer O'Branovich. In light of that fact, we are compelled to conclude that Officer O'Branovich was not "attempting to discharge a [lawful] duty of his office" at the time that he placed Juvenile under arrest, rendering Juvenile's arrest for resisting, delaying, or obstructing a public officer unlawful, Sinclair, 191 N.C. App. at 489-90, 663 S.E.2d at 870, and that any search that Officer O'Branovich conducted of Juvenile incident to that arrest was impermissible. Tappe, 139 N.C. App. at 36-37, 533 S.E.2d at 264. Thus, the trial court erred by allowing the admission of evidence that Officer O'Branovich seized a set of brass knuckles from Juvenile during a search incident to his arrest for resisting, delaying, and obstructing a public officer.
The only evidence offered at the adjudication hearing tending to show that Juvenile possessed a set of brass knuckles was Officer O'Branovich's testimony concerning the search that he conducted of Juvenile incident to Juvenile's arrest for resisting, delaying, and obstructing an officer. In the absence of Officer O'Branovich's testimony, the record would not have contained sufficient evidence to support the trial court's determination that Juvenile carried a concealed weapon. Thus, given the facts contained in the present record, we believe that Juvenile has met his burden of showing that a "different result probably would have been reached but for the [trial court's] error." Bishop, 346 N.C. at 385, 488 S.E.2d at 779. As a result, we conclude that the trial court committed plain error by admitting Officer O'Branovich's testimony concerning the seizure of the brass knuckles during the search that he conducted incident to Juvenile's arrest for resisting, delaying, and obstructing a public officer; that the trial court's order adjudicating Juvenile delinquent based upon a finding that he carried a concealed weapon should be reversed; and that this case should be remanded to the Johnston County District Court for further proceedings not inconsistent with this opinion.
III. Conclusion
Thus, for the reasons set forth above, we conclude that (1) the petition purporting to charge Juvenile with resisting, delaying, and obstructing a public officer was fatally defective and that (2) the trial court committed plain error by allowing the admission of Officer O'Branovich's testimony concerning the seizure of a set of brass knuckles from Juvenile during a search incident to his arrest for resisting, delaying, and obstructing a public officer. As a result, we reverse that portion of the trial court's order adjudicating Juvenile delinquent for resisting, delaying, and obstructing a public officer. In addition, we reverse Juvenile's adjudication for carrying a concealed weapon and remand this case for a new delinquency hearing.
REVERSED AND REMANDED.
Judges MCGEE and MCCULLOUGH concur.
Report per rule 30(e).