No. Coa07-1481 Twentieth Judicial District

NO. COA07-1481 TWENTIETH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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IN THE MATTER OF: )

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) FROM ANSON COUNTY

S.D.R. ) No. 06 JB 15

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JUVENILE-APPELLANT’S BRIEF

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INDEX

PAGE

TABLE OF AUTHORITIES ...... iii

QUESTIONS PRESENTED ...... 1

STATEMENT OF THE CASE ...... 2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ...... 3

STATEMENT OF THE FACTS ...... 3

ARGUMENTS ...... 5

I. THE TRIAL COURT ERRED IN FINDING THE JUVENILE DELINQUENT FOR RESISTING OBSTRUCTING OR DELAYING AN OFFICER AS THEIR WAS NOT SUFFICIENT EVIDENCE PRESENTED FOR THE TRIAL COURT TO FIND THE JUVENILE DELINQUENT OF THIS CHARGE (ASSIGNMENT OF ERRORS NO.1 AND 2, Rpp.17-18) ...... 5

II. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE OF FELONIOUS BREAKING AND ENTERING AND LARCENY AND THEN FINDING THE JUVENILE DELINQUENT ON THIS CHARGE (ASSIGNMENTS OF ERROR NO. 3-5, Rpp.18-19) . . .8

CONCLUSION ...... 16

CERTIFICATE OF SERVICE ...... 17

CASES TABLE OF AUTHORITIES PAGE

Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447(1979). . 8

Florida v. Jimeno, 500 U.S. 248, 114 L. Ed. 2d 297(1991).7

In re Heil, 145 N.C. App. 24,550 S.E.2d 815(2001). . . .5,6

N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649,

599 S.E.2d 888 (2004)...... 9

Schneckloth v. Bustamonte,412 U.S. 218,36 L. Ed. 2d 854(1973).7

Stanton v. Brame, 136 N.C. App. 170,523 S.E.2d 424(1999) . .9

State v. Belk, 268 N.C. 320, 150 S.E.2d 481(1966)...... 7

State v. Boone, 297 N.C. 652, 256 S.E.2d 683(1979). . . . .11,12

State v. Edmondson, 70 N.C. App. 426,320 S.E.2d 315(1984). 12,13

State v. Jones, 96 N.C. App. 389, 386 S.E.2d 217 (1989) . 7

State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002) . . .9

State v. Nettles, 170 N.C. App. 100, 612 S.E.2d 172 (2005) . 9

State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982) . . . . .13

State v. Powell, 299 N.C. 95,261 S.E.2d 114(1980). . . .5,6

State v. Winston, 45 N.C. App. 99 (1980) ...... 11

STATUTES

N.C. Gen. Stat. 7B-1001 ...... 3

G.S.§ 14-54 ...... 10,12

G.S. 14-72 ...... 12

G.S. 14-223 ...... 5,6

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Amendment IV ...... 7

N.C. Constitution, Article I,§ 20 ...... 7

NO. COA07-1481 TWENTIETH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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IN THE MATTER OF: )

)

) FROM ANSON COUNTY

S.D.R. ) No. 06 JB 15

)

JUVENILE-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

I. DID THE TRIAL COURT ERR IN FINDING THE JUVENILE DELINQUENT FOR RESISTING OBSTRUCTING OR DELAYING AN OFFICER AS THEIR WAS NOT SUFFICIENT EVIDENCE PRESENTED FOR THE TRIAL COURT TO FIND THE JUVENILE DELINQUENT OF THIS CHARGE?

II. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE OF FELONIOUS BREAKING AND ENTERING AND LARCENY AND THEN FINDING THE JUVENILE DELINQUENT ON THIS CHARGE?

STATEMENT OF THE CASE

A petition alleging the Juvenile resisted, delayed and obstructed an officer was filed on 17 April 2007. Another petition alleging the Juvenile committed a felonious breaking and entering and felonious larceny was filed the same day. The Juvenile’s case was called for hearing at the 18 May and 6 July 2007 sessions of Juvenile Court for the County of Anson before the Honorable Kevin Bridges. On or around 18 May 2007, the trial court adjudicated the Juvenile Delinquent for resisting, delaying and obstructing an officer. On or around 6 July 2007, the trial court adjudicated the Juvenile delinquent for felony breaking and entering. The case proceeded to disposition, and a Disposition Order was entered by the trial court in open court on 6 July 2007, Order entered 23 July 2007. The Juvenile gave timely notice of appeal from the Adjudications and Disposition of the trial court in open court on 6 July 2007. The transcript was ordered on 15 July 2007 and was mailed to the parties on 3 October 2007.

The final record on appeal was filed with the North Carolina Court of Appeals on 6 December 2007 and docketed on 10 December 2007. The printed Record on Appeal was mailed from the Office of the Clerk of the Court of Appeals on 13 December 2007.

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

The ground for appellate review is a final order in a juvenile matter under N.C. Gen. Stat. 7B-1001. A timely notice on appeal was given by the Defendant in open court on 6 July 2007.

STATEMENT OF THE FACTS

SDR was eating lunch and watching T.V. in the library at the cooperative extension office in Wadesboro on April 11, 2007. He was taken there by Betty Garris, who was supervising SDR’s community service. After he finished lunch he took his tray to the kitchen. Janice Rywak’s office was right across the hall from the library and her door was open. SDR went to her doorway and asked her when Ms. Garris would be back. He testified that he did not go in her office, and did not take her money, or anyone else’s money. (May 18, 2007 Tpp.41-44; July 6, 2007 Tp.3-4; hereinafter the May 18 Transcript will be referred to as Vol.I, and the July 6 Transcript will be referred to as Vol.II).

Betty Garris works with Cooperative Extension in Anson County and was supervising SDR doing his community service on April 11, 2007. She took him to the Cooperative Extension building to eat his lunch while she attended a board meeting. She took him into the building, and he was supposed to be in the Agriculture Extension office that day. There were no “keep out” or “private” signs in the hallway or on any of the doors. She never told SDR that the rest of the building was off limits for him to go in. Janine Rywak’s office was directly across the hall from the library. (T. Vol. II, pp.2-4; 8-12).

Janine Rywak worked in the Agricultural Extension building and her office was directly across from the library. She testified that she went to the restroom and when she came back, SDR was in her doorway and asked her where “Miss Betty” was. She told him and he went across the hall to the library. When she went back to her desk, she noticed that her purse was open and her wallet was open. She checked, and testified that $140, “give or take” was missing. She confronted SDR and he told her he did not take any money. She testified that she counted the money that morning and had five or six $20s; three $5s; and four $1s. She never saw SDR near her purse. She did not lock or close her office door when she went to the bathroom. (T. Vol. I, pp.11-12; T. Vol. II, pp.14-19; 22)

Rywak contacted Betty Garris and got her out of her Board meeting. The police were then called, and Wadesboro Police officer Kyle Beam and Juvenile Court Counselor Josh Millsaps came to the library in the extension building. SDR consented to a search, and they found nothing on his person. Beam testified that he noticed SDR had something in his mouth, and began to attempt to try and stop SDR from swallowing by applying a “pressure point” to SDR’s neck while putting his hands under SDR’s chin. When the officer grabbed SDR around his neck he began struggling. SDR was thrown into a bookcase and then pinned on the floor face down. Millsaps and Beam testified that after SDR was pinned face down on the floor, some money fell out of his mouth onto the floor and SDR “licked it up” and swallowed it. Millsaps, Beam and SDR all testified that SDR continually denied that he had money in his mouth. (T. Vol. II, p.8; T. Vol. I, pp.15-17;22;26-28;32;45)

Jason Miller with the Anson County EMS testified that he was in library and saw SDR get money in his mouth and swallow it. He told Beam and Millsaps that they could take SDR to the hospital and X-Ray his stomach or wait for the money to pass. SDR testified that he was X-Rayed at the hospital and nothing showed up. No money was ever recovered. (T. Vol. II, pp.29;32;26;28)

ARGUMENTS

THE TRIAL COURT ERRED IN FINDING THE JUVENILE DELINQUENT FOR RESISTING OBSTRUCTING OR DELAYING AN OFFICER AS THEIR WAS NOT SUFFICIENT EVIDENCE PRESENTED FOR THE TRIAL COURT TO FIND THE JUVENILE DELINQUENT OF THIS CHARGE (ASSIGNMENT OF ERRORS NO.1 AND 2, Rpp.17-18)

The trial court found SDR delinquent on the juvenile petition for resist, delay and obstruct an officer under G.S. 14-223, at the conclusion of the probable cause hearing. As the evidence presented was not sufficient to find the juvenile delinquent of this charge, the trial court must be reversed.

Standard of Review

In cases where the juvenile moves to dismiss, the trial court must determine "whether there is substantial evidence (1) of each essential element of the offense charged, . . . and (2) of [juvenile's] being the perpetrator of such offense." In re Heil, 145 N.C. App. 24, 28, 550 S.E.2d 815, 819 (2001) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted)). If the evidence raises merely "suspicion or conjecture" as to the offense's commission, or the identity of the juvenile as its perpetrator, the motion should be allowed. Id. "In reviewing a challenge to the sufficiency of evidence, it is not our duty to weigh the evidence, but to determine whether there was substantial evidence to support the adjudication, viewing the evidence in the light most favorable to the State, and giving it the benefit of all reasonable inferences." Id. at 29, 261 S.E.2d at 819.

Argument

N.C.G.S. 14-223 states in pertinent part: “If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.” In the present case, the petition alleges that the resisting consisted of: “pulling away and refusing to spit out evidence he had in his mouth at the time the Officer was investigating.” (Rp.2)

It is uncontroverted that SDR consented to a search of his person, and the officers found no evidence upon a search of his person. It is also uncontroverted that SDR did not resist or struggle with the officers in any way until Officer Beam grabbed SDR around the neck and began applying pressure, so as to make him spit out what was in his mouth. SDR testified that he could not breathe as this activity occurred and this did cause him to struggle with the officer. The action of grabbing SDR around the neck and applying pressure in an attempt to force him to spit out what was in his mouth was beyond the scope of consent for a search of his person, and did not constitute a “duty of his office”. Therefore, it was not unlawful for SDR to struggle with him so he would not be choked.

"Generally, the Fourth Amendment and article I, § 20 of the North Carolina Constitution require issuance of a warrant based on probable cause for searches. However, our courts recognize an exception to this rule when the search is based on the consent of the detainee." State v. Jones, 96 N.C. App. 389, 397, 386 S.E.2d 217, 222 (1989) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 858 (1973) and State v. Belk, 268 N.C. 320, 322, 150 S.E.2d 481, 483 (1966)), disc. review denied, 326 N.C. 366, 389 S.E.2d 809 (1990).

"The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness- what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 302 (1991). In the context of a search upon probable cause, the United States Supreme Court has stated that the test of reasonableness "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559, 60 L. Ed. 2d 447, 481 (1979).

In the present case, SDR clearly consented to a search of his person, i.e. a pat down search of his clothing to determine if he had any contraband on his person. However, he did not consent in any way to a search of the interior of his mouth, and certainly did not consent to being grabbed around his neck and having pressure applied to the point of choking him.

The actions by Officer Beam were “unreasonable” and outside the scope of the consent given by SDR for a search. As Officer Beam’s actions were outside the “duties” of his office, it was not unlawful for SDR to resist somewhat when Officer Beam began to choke him. This charge should have been dismissed.

SDR was supposed to be in the Agricultural Extension Building. There was no evidence presented that he committed a breaking or entering at any time. Further, there was insufficient evidence that he committed any larceny, and his Motion to Dismiss should have been allowed.

Standard of Review

The standard of review on a motion to dismiss a charge was properly ruled upon is de novo. The question is whether the evidence presented was substantial as a matter of law. State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d 172, 174, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Questions of law are reviewed de novo. Stanton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d 424, 427 (1999). Under a de novo standard of review, the reviewing court considers the matter anew and freely substitutes its own judgment for that of the lower court. N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).

In ruling upon a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence. State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002). The trial court determines whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Id. at 473, 573 S.E.2d at 889. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id.

Argument

A. Breaking and Entering

G.S.§ 14-54 (a) states: “Any person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon.” In the present case, the uncontroverted evidence was that SDR was taken to the Agricultural Extension Building by Betty Garris and told to eat his lunch in the library while she went to a Board meeting. SDR was supposed to be in the Agricultural Extension Building that day. There were no “keep out” signs anywhere in the building, and no signs that indicated the halls or any of the offices were private. Garris also testified that she did not tell SDR that the remainder of the building besides the library was off limits to him. (T. Vol. II, pp.9-12)

Even in the light most favorable to the State, the uncontroverted evidence shows that if SDR went in Janine Rywak’s office, her door was unlocked and open, directly across the hall from the library he was in and there were no signs on her door or anywhere else in his view that indicated he could not go in her office. (T. Vol. I, 10-13) There was simply no evidence that SDR committed a breaking and entering, even if he went into Janine Rywak’s office.

This Court has held that for there to be a wrongful entry, an entry must be without the consent of the owner or anyone empowered to give effective consent to entry. State v. Winston, 45 N.C. App. 99 (1980). In Winston, Defendant was charged for breaking and entering into the office of an Assistant Clerk of Superior Court. The evidence in that case shows that Defendant entered the Assistant Clerk’s office between 1:00 and 2:00 p.m. on a business day while the Clerk was on break. There were no signs indicating that either the corridor connecting this office to a large hallway or the office were private or that the general public should “keep out”. The Winston Court held that as the courthouse was open to the public and there was no indication that this office was not, then the entry was with the implied consent of the occupier of the premises, and no breaking and entering occurred. Id. at 101.

Similarly, SDR was in a public building, the Anson County Agricultural Extension Service Building. The uncontroverted evidence shows that he was supposed to be in the library that day and Janine Rywak’s office was right across the hall from the library. Her door was open and there were no signs anywhere that told SDR or anyone else that he could not go in the hallway or Rywak’s office was off limits or private. Our Supreme Court has held "[A]n entry, even if with felonious intent, cannot be punished when it is with the owner's consent." State v. Boone, 297 N.C. 652, 657, 256 S.E.2d 683, 686 (1979). Our Supreme Court has held that, where a defendant "entered [a] store at a time when it was open to the public[, h]is entry was . . . with the consent, implied if not express, of the owner[, and could not] serve as the basis for a conviction for felonious entry." Id. at 659, 256 S.E.2d at 687.

In the present case, SDR came with Betty Garris, an employee of the Anson Agricultural Extension Service, to the building to eat lunch in the library. SDR was not told he could not go into the hallway or into Janine Rywak’s open office door. There were no signs indicating that these areas were private or off limits to anyone. As such, there was no wrongful entry and SDR’s motion to dismiss should have been allowed on this basis.

B. Larceny

The State charged SDR with Felony Larceny under the provisions of G.S. 14-72(b)(2) which reads in pertinent part: “The crime of larceny is a felony, without regard to the value of the property in question, if the larceny is any of the following:

. . .

(2) Committed pursuant to a violation of G.S. 14-51, 14-53, 14-54, 14-54.1, or 14-57.” (Rp.4).

In order to convict defendant of felony larceny pursuant to a breaking or entering, the State must necessarily demonstrate that a violation of § 14-54 occurred. State v. Edmondson, 70 N.C. App. 426, 428, 320 S.E.2d 315, 317 (1984). As argued above, no breaking or entering occurred, so the felony larceny count should have been dismissed on that basis alone.

In State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982), our Supreme court confronted the issue of whether a defendant who was charged with felony breaking and entering and felony larceny pursuant to a breaking or entering could properly be convicted of felony larceny if the jury found that defendant did not break or enter into the building out of which property was stolen. The North Carolina Supreme Court quoted from the opinion below that

[o]ur courts have repeatedly held that where a defendant is tried for breaking or entering and felonious larceny and the jury returns a verdict of not guilty of felonious breaking or entering, it is improper for the trial judge to accept the verdict of guilty of felonious larceny unless the jury has been instructed as to its duty to fix the value of the property stolen . . . .