1
No. 372A06 NINTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
*************************
IN THE MATTER OF:)
) From GRANVILLECOUNTY
J.H.,)
a juvenile.)
*************************
JUVENILE-APPELLANT'S NEW BRIEF
*************************
1
INDEX
AUTHORITIES CITED...... ii
QUESTION PRESENTED...... 1
PROCEDURAL HISTORY
District Court...... 1
Court of Appeals...... 2
JURISDICTION FOR APPELLATE REVIEW...... 2
FACTS...... 3
ARGUMENT
Testimony that J.H. was missed around the time that his mother's car was missing, several days later was located at a house where the car was parked, and "confessed" is insufficient to prove that J.H. possessed the vehicle.
A. Standards of review...... 6
B. Preservation for review...... 6
C. Application to the facts...... 7
CONCLUSION...... 8
CERTIFICATE OF SERVICE...... 10
1
AUTHORITIES CITED
In re J.H., ___ N.C.App. ___, 630 S.E.2d 457
(2006)...... 2
State v. Garcia, 358 N.C. 382, 597 S.E.2d
724 (2004)...... 6
State v. Moose, 101 N.C.App. 59, 398 S.E.2d
898 (1990)...... 6
N.C.R.App.P. 10(b)(3)...... 7
N.C.G.S. §7A-30...... 2
N.C.G.S. §7B-2602...... 2
1
No. 372A06 NINTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
*************************
IN THE MATTER OF:)
) From GRANVILLECOUNTY
J.H.,)
a juvenile.)
*************************
JUVENILE-APPELLANT'S NEW BRIEF
*************************
QUESTION PRESENTED
Is testimony that J.H. was missed around the time that his mother's car was taken, several days later was located at a house where the car was parked, and "confessed" sufficient to prove that J.H. possessed the vehicle?
PROCEDURAL HISTORY
District Court
On a petition alleging that Juvenile-Appellant J.H. was delinquent because of committing felonious larceny of a 2000 Ford Focus valued at $15,000 belonging to his mother and felonious possession of stolen goods for possession of that vehicle on 6 January 2005 (R. pp. 3-4), the case proceeded to adjudicatory and dispositional hearings before the District Court in Granville County on 22 February 2005 (T. pp. 1-29; see R. p. 6).
The District Court (Hon. Charles W. Wilkinson Jr., presiding) found J.H. not guilty of larceny but guilty of possession of a stolen vehicle (T. p. 17) and entered an order adjudicating J.H. delinquent for felonious possession of stolen goods and committing J.H. to the Department of Juvenile Justice and Delinquency Prevention for placement in a youth development center for a minimum period of six months (R. pp. 8-9). J.H. appeals (R. p. 13; T. p. 28).
Court of Appeals
By decision filed 6 June 2006, the Court of Appeals unanimouslyreverses the order of the District Court because of insufficient evidence of value of the goods and remands the case to the District Court for entry of an order adjudicating J.H. delinquent for misdemeanor possession of stolen goods. In dissent, one Judge would dismiss the petition because of insufficient evidence that J.H. possessed the goods. In reJ.H., ___ N.C.App. ___, 630 S.E.2d 457 (2006).
J.H.appeals based on the dissent.
JURISDICTION FOR APPELLATE REVIEW
N.C.G.S. §7B-2602 states: "(R)eview of any final order of the court in a juvenile matter...shall be before the Court of Appeals." N.C.G.S. §7A-30 states: "(A)n appeal lies of right to the Supreme Court from any decision of the Court of Appeals rendered in a case...(2)In which there is a dissent."
FACTS
The sole witness at the adjudicatory hearing was J.H.'s mother (T. pp. 3-15).
J.H.'s mother (T. p. 3) testified that on 6 January 2005, J.H. was living "(a)t his grandfather' house" by order (T. p. 4). Asked, "(D)o you have the only key to your Ford Focus?", she answered, "I have two keys. My husband has a key and I have a key" (T. p. 5). She testified, "When I look out the window, the car was gone" (T. p. 5).
She testified that she had seen J.H. on 6 January 2005 "(a)t my house...I went and got him" (T. p. 6). Asked if she gave J.H. permission to leave her home, she answered, "I him over my father' house that afternoon", answering, "Yes", when asked if she took him back and if that was in the Ford Focus (T. p. 7). She next saw J.H. "like, nine days later", during which both J.H. and the Ford Focus were gone (T. p. 7).
She testified, "I found him...In Durham" (T. p. 9), found her car "in this lady's driveway" (T. p. 10), and:
"Q. Now where was [J.H.] in relation to your car?
A. Well, I can't answer that because when I saw
my car I just jumped in my car and took the car.
Q. Were the keys in it?
A. No. I had the spare key to my car.
...
Q. So you found the car at the house you found
[J.H.]?
A. Yes.
...
Q. Did you talk with [J.H.]?
A. When he came outside.
...
Q. Did you ask him about your car?
A. I asked him why did he leave.
Q. What did he say?
A. Because he had a test coming up and he knew he
was going to fail the drug test.
Q. Did he say if he took your car?
A. He confessed.
Q. But your car was in the driveway that he was
staying, is that right?
A. Yes.
Q. Did [J.H.] say anything to you about your car?
A. No.
Q. Did he say he'd been driving it?
A. No.
...
Q. He didn't say that?
A. No. I was more concerned about my son than
the car"
(T. pp. 10-12).
Later in her testimony:
"Q. Do you remember telling a detective that
[J.H.] told you that he took your car and had gone to Durham with it?
A. No.
[DEFENSE COUNSEL]: Your Honor, I OBJECT and MOVE
TO STRIKE.
...
THE COURT: SUSTAINED, SUSTAINED...MOTION TO
STRIKE is allowed.
...
[PROSECUTOR]: Well, Your Honor, it would have
been a statement of the defendant not in custody.
THE COURT...If you got the detective, put him on"
(T. pp. 13-14).
On cross-examination, asked how many people were in the house in Durham, J.H.'s mother answered, "about four or five... one adult...and four or five teenagers, and when we got ready to leave a man came up on a van" (T. pp. 14-15).
The State rested after J.H.'s mother's testimony (T. p. 15). J.H.:
"move[d]...for a dismissal...At best the State has shown that he was in the mere proximity of where this car was found...five to six other people in that house who could just as easily have been the ones that stole that vehicle and possessing that stolen vehicle"
(T. pp. 15-16). The District Court ruled: "OVERRULED on the
motion" (T. p. 16), and J.H. presented no evidence (T. p. 16).
ARGUMENT
Testimony that J.H. was missed around the time that his mother's car was missing, several days later was located at a house where the car was parked, and "confessed" is insufficient to prove that J.H. possessed the vehicle. (Assignment of Error #1 at R. p. 17)
A. Standards of review
"When a defendant moves to dismiss a charge against him on the ground of insufficiency of the evidence, the trial court must determine 'whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense' ...'Substantial evidence' is relevant evidence that a reasonable person might accept as adequate ...or would consider necessary to support a particular conclusion...The reviewing court considers all evidence in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence"
State v. Garcia, 358 N.C. 382, 412-413, 597 S.E.2d 724, 746 (2004)(citations omitted). "Possession is defined as 'having the power and intent to control disposition or use of the contraband'", State v. Moose, 101 N.C.App. 59, 65, 398 S.E.2d 898, 901 (1990)(citation omitted).
B. Preservation for review
"A defendant may make a motion to dismiss the action...at the conclusion of all the evidence ...If the motion...is denied, the defendant mayurge as ground for appeal the denial of his
motion"
N.C.R.App.P. 10(b)(3).
Here, J.H. did move to dismiss the action at the conclusion of all of the evidence (T. pp. 15-16).
C. Application to the facts
There simply is no evidence that J.H. ever had the power or intent to control the disposition or use of his mother's car. There is no evidence that J.H. had anything to do with that car, other than to ride in it as a passenger.
There is no evidence that a key or anything else from the car was ever in J.H.'s possession. There is no evidence that J.H. was present when the car was taken on 6 January 2005. To the contrary, J.H.'s mother had taken him back to his grandfather's house that afternoon, in the car (T. p. 7), which only later was gone when she looked out the window (T. p. 5).
That J.H. was found in Durham at the house where the car also was found supports an inference at most that J.H. accompanied the car to Durham, not that J.H. had any power or intent to control the disposition or use of the car. No evidence was presented that J.H. wanted anything to do with the car, but only that J.H. wanted to leave the area "(b)ecause he had a test coming up and he knew he was going to fail the drug test" (T. p. 12). From the evidence presented at theadjudicatory hearing, itis just as likely that J.H. accepted a
ride outoftown from whoever didtake the car -- as a passenger with no power or intent to control the disposition or use of the car -- as it is likely that J.H. himself took the car or was involved in its possession.
The conclusory testimony, "He confessed", even though in response to the question, "Did he say if he took your car?", does not suffice as evidence that J.H. took the car when followed immediately by the specific testimony, "No", in response to both questions, "Did [J.H.] say anything to you about your car?", and, "Did he say he'd been driving it?" (T. p. 12). That unequivocal testimony begs the question, "Then to what did J.H. confess?", a question which no one asked at the adjudicatory hearing.
Evidently, the prosecutor believed that J.H.'s mother had told a detective that J.H. had admitted taking the car (see T. pp. 13-14) and expected J.H.'s mother to testify to such admission at the adjudicatory hearing. However, J.H.'s mother did not so testify. The bottom line in this case is that the prosecutor's frustrated expectations of what the testimony would be do not make up for the insufficiency of that testimony.
CONCLUSION
The District Court erred in denying J.H.'s motion to dismiss the petition at the conclusion of the evidence. Thejudgment of the Court of Appeals should be modified to direct
that the petition be dismissed.
Respectfully submitted this 10th day of August 2006.
Juvenile-Appellant J.H.
By appointed counsel
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KEVIN P. BRADLEY
North Carolina State Bar22798
P.O. Box 303
DurhamNC27702-0303
(919) 680-2062
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CERTIFICATE OF SERVICE
KEVIN P. BRADLEY certifies:
1) I am a lawyer licensed in North Carolina, State Bar22798. I
am appointed to represent the Juvenile-Appellant J.H. on appeal from the order of the District Court in Granville County on 22 February 2005 adjudicating J.H. delinquent for possession of stolen goods.
2) On Thursday 10 August 2006, I served a copy of J.H.'s above
Juvenile-Appellant's New Brief on the Appellee State of North Carolina by first class mail addressed: Attorney General, ATTN: Donna D. Smith, Assistant Attorney General, P.O. Box 629, Raleigh NC 27602-0629.
Certified on 10 August 2006.
______
KEVIN P. BRADLEY