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No. 06-586 DISTRICT 8
NORTH CAROLINA COURT OF APPEALS
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IN THE MATTER OF:)
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R.G.)From Wayne County
)05 J 18
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JUVENILE/APPELLANT’S BRIEF
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QUESTIONS PRESENTED
I. Did the trial court err by failing to consider the issue of self defense and adjudicating the juvenile a delinquent, as the evidence was insufficient to support the adjudication of juvenile as delinquent as a matter of law?
STATEMENT OF THE CASE
Juvenile was tried for the charge of assault inflicting serious bodily injury at the 5 January 2006 juvenile session of District Court for Wayne County, the Honorable R. Les Turner, Judge Presiding. The court adjudicated juvenile a delinquent and conducted a disposition hearing. The court ordered a Level 2 disposition, and juvenile was placed in a supervised day program with probation for twelve (12) months. The adjudication and disposition orders were both entered 5 January 2006. Juvenile gave timely notice of appeal.
GROUNDS FOR APPELLATE REVIEW
Juvenile appeals his adjudication and disposition pursuant to N.C. Gen Stat. § 7B-2602 (2003).
STATEMENT OF THE FACTS
At the adjudication hearing, the evidence at trial showed that juvenile, R.G., testified that he was in wood shop class on 30 September 2005 when a girl in the class started calling him names. Juvenile called names back to the girl. Another male juvenile in the class, L.B.[1], told juvenile he should not be calling the girl names and told the juvenile that, “[juvenile’s] little A got whipped that morning.” (Tp. 92) L.B. was referring to the fact that juvenile had been in a fight at school earlier in the day. Juvenile got mad at L.B. for saying that he had got beaten, and then juvenile and L.B. started “going off at the mouth” (Tp. 92) at each other. L.B. told juvenile, “[Y]ou’re gonna pop off” referring to popping off like a gun (Tpp. 94-95). Juvenile testified that he took this to mean that L.B. was going to shoot him (Tp. 104). L.B. came over to juvenile and started pushing juvenile, and juvenile pushed him back. Juvenile testified that he and L.B. had pushed each other before, and juvenile thought they were playing, but on the 3rd push L.B. got serious (Tp 93). L.B. punched juvenile in the face (Tpp. 93, 95, 104) and then juvenile picked him up, threw him down, and hit L.B. before going to the principal’s office (Tp. 93). Juvenile testified he only picked up L.B. after L.B. hit him, and because he believed L.B. was going to “whoop” him (Tp. 95). Juvenile is 5’6” to 5’7” and weighs 136 lbs. (Tp. 95), while L.B. is 6 feet tall (Tp. 23) and weighs 221 pounds (Tp. 19). Juvenile left the classroom after incident and went straight to principal’s office and told them what had happened (Tpp. 96-97).
On the morning of the altercation with juvenile, L.B. stated that he had heard juvenile had been in a fight, and during wood shop class that day, L.B. left his work place and walked over to juvenile to ask him about the fight (Tp. 27). After he asked juvenile about the earlier fight, L.B. stated that juvenile “flared up” at L.B. and started fighting (Tp. 6). L.B. testified that juvenile got in his face and pushed him (Tp. 7). After juvenile pushed him, L.B. pushed juvenile back (Tp. 10). Then, juvenile tackled L.B. and threw him on the ground (Tp. 11), and L.B. heard his ankle “pop” (Tpp. 11-12). L.B. testified that his right ankle was broken (Tp. 13). Juvenile hit L.B. in the head and kicked him in the side, and then left the classroom (Tp. 12). Other students and the teacher were there, but no one else was involved in the fight (Tp. 13). The Rescue Squad was called and they transported L.B. to the hospital (Tp. 15). L.B. was admitted to the hospital for two days.
R.J., a student, testified that he was in the classroom when the altercation occurred. R.J. testified that L.B. walked over to juvenile and asked him about the earlier fight and then they started pushing each other (Tpp. 40-41). Juvenile picked up L.B. and they fell back on the floor (Tp. 41). Juvenile kicked L.B. and then ran out of the room (Tp. 42). In a written statement made on that same day, R.J. said that L.B. was fussing at juvenile before the altercation (Tpp. 45-47). James testified that he only wrote that because other students had told him to do so (Tp. 54). James testified that juvenile had been jumped on in track and had gotten “beaten up” earlier that day (Tp. 47).
C.P. testified that she was also in the wood shop class on the day in question. She testified that the only thing she saw was juvenile pick up L.B. and throw him to the ground (Tp. 61). She didn’t see any pushing or fighting before that. In her statement made the day of the incident, C.P. stated that juvenile had been calling a classmate ugly and L.B. told him to stop and then “[L.B.] got mad and got in [juvenile’s] face and was ready to fight [juvenile]” (Tp. 66).
The teacher Mr. Billy Parrot testified that on the day in question, he was busy and didn’t see how the altercation started (Tp. 72). He only saw that juvenile and L.B. were pushing each other and then went on the ground (Tp. 72-73). He yelled “stop” but they went on down (Tpp. 72-73). Parrot saw juvenile hit L.B. in the head with his fist and kick him, and then juvenile left the room (Tp. 73). Parrot testified that since juvenile had been in a fight earlier that day, he should have been contained and not allowed to go to class per school policy, which apparently wasn’t followed that day (Tp. 75). Parrot had never had any trouble from juvenile or L.B. before that day (Tp. 77).
ARGUMENT
I. The trial court erred by failing to consider the issue of self defense and adjudicating the juvenile a delinquent, as the evidence was insufficient to support the adjudication of juvenile as delinquent as a matter of law.
Assignments of Error 1 and 2, Rp. 20
Standard of Review
“The allegations of a petition alleging the juvenile is delinquent shall be proved beyond a reasonable doubt.” N.C. Gen. Stat. § 7B-2409. Juveniles are entitled to have evidence evaluated by same standard as apply in criminal proceedings for adults. In the Matter of Davis, 126 N.C. App. 64, 483 S.E.2d 440 (1997). Upon a defendant’s motion to dismiss, the question before the court is whether there is substantial evidence of (1) each essential element of the offense charges, and (2) of defendant’s being the perpetrator of such offense. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the defendant’s motion to dismiss must be allowed. Id. If the court finds that the allegations have not been proved as provided in N.C.G.S. 7B-2409, “the court shall dismiss the petition with prejudice and the juvenile shall be released from secure or nonsecure custody if the juvenile is in custody.” N.C. Gen. Stat. 7B-2411. If the juvenile alleges he acted in self-defense, the State has the burden of proving that he is not entitled to the defense of self-defense. See State v. Price, 118 N.C. App. 212, 219, 454 S.E.2d 820, 824, disc. review denied, 341 N.C. 423, 461 S.E.2d 766 (1995).
Argument
In order to prove the offense of assault inflicting serious bodily injury, the State must present evidence of two essential elements: (1) the commission of an assault on another, which (2) inflicts serious bodily injury. State v. Wampler, 145 N.C. App. 127, 549 S.E.2d 563 (2001); see also, N.C.G.S. § 14-32.4 (1999).
However, despite the State showing substantial evidence of these elements, the juvenile cannot be adjudicated a delinquent if he acted in self-defense. “[T]he test on a motion to dismiss is whether the State has presented substantial evidence which, taken in light most favorable to the State, is sufficient to convince a rational trier of fact the defendant did not act in self-defense.” State v. Hamilton, 77 N.C. App. 506, 513, 335 S.E.2d 506, 511 (1985), disc. review denied, 315 N.C 593, 341 S.E.2d 33 (1986) (citingState v. Herbin, 298 N.C. 441, 445, 259 S.E.2d 263, 267 (1979)). The State has the burden of proving that a defendant is not entitled to the defense of self-defense. See State v. Price, 118 N.C. App. 212, 219, 454 S.E.2d 820, 824, disc. review denied, 341 N.C. 423, 461 S.E.2d 766 (1995). The State did not present substantial evidence that juvenile did not act in self-defense in the present case.
Self-defense applies to excuse a defendant's assault of another, “even
though he is not . . . put in actual or apparent danger of death or great bodily harm.” State v. Anderson, 230 N.C. 54, 56, 51 S.E.2d 895, 897 (1949). “The right to self-defense depends upon . . . reasonable apprehension of real or apparent danger.” Lail v. Woods, 36 N.C. App. 590, 592, 244 S.E.2d 500, 502, disc. review denied, 295 N.C. 550, 248 S.E.2d 727 (1978). “If one is without fault in provoking, or engaging in, or continuing a difficulty with another, he is privileged by the law of self-defense to use such force against the other as is actually or reasonably necessary under the circumstances to protect himself from bodily injury or offensive physical contact at the hands of the other . . . ." State v. Hayes, 130 N.C. App. 154, 179, 502 S.E.2d 853, 870 (1998)(quotingState v. Anderson at 56, 51 S.E.2d at 897), aff'd in part, modified in part, disc. review denied in part, 350 N.C. 79, 511 S.E.2d 302 (1999).
The State did not present substantial evidence that juvenile did not act in self-defense. There was no evidence that juvenile was the aggressor towards L.B., or that he assaulted L.B. without being assaulted first. Juvenile merely protected himself and did not continue the altercation, leaving immediately afterwards to report the incident to the principal.
The incident began when a girl began calling the juvenile names, and the juvenile called her names back. This situation would have most likely have ended if L.B. had not confronted juvenile.
L.B. told juvenile he should not call the classmate names and started taunting the juvenile about the fact that he had been beaten in an earlier fight that day. L.B. himself testified that he left his work place and walked over to juvenile to ask him about the fight (Tp. 27). This shows that L.B. was the aggressor in the situation.
The classmate R.J. also testified that L.B. walked over to juvenile and asked him about the earlier fight (Tp. 40). In her statement made the day of the incident, classmate C.P. stated that juvenile had been calling a classmate ugly and L.B. told him to stop and then “[L.B.] got mad and got in [juvenile’s] face and was ready to fight [juvenile]” (Tp. 66). Again, this evidence shows that L.B. was the aggressor and started the fight. The testimony of the classmates corroborate the juvenile’s version of events, and not that of L.B., who indicated that he was polite and nice to juvenile when he asked juvenile if he had been in a fight earlier that day (Tp. 21). This testimony of L.B. that he was “polite and nice” indicates he was less than candid with the court, puts his credibility into question.
Juvenile testified that only when L.B. got “serious” about the pushing, inferred he might shoot juvenile, and actually punched him in the face, did the juvenile use force to protect himself. It is apparent that L.B. provoked the incident and juvenile feared for his safety, especially since L.B. is so much bigger than juvenile. L.B. admitted he was much larger than the juvenile --- L.B. is 6 feet tall (Tp. 23) and weighs 221 pounds (Tp. 19), while the juvenile weighs 136 pounds and is only 5’6” to 5’7” tall (Tpp. 96-97). With a person almost 100 pounds heavier pushing and hitting the juvenile, it was reasonable for the juvenile to believe that he was in physical danger and use force to protect himself.
Juvenile only did what he had to do to keep L.B. from hurting him, and then immediately he went to the principal’s office to report the incident. The fact that he immediately went to the office showed that he had acted in self defense and was afraid of L.B., and did not intend to continue the altercation beyond protecting himself.
Under the law of self-defense, one does not engage or continue the difficulty if they are reacting to being attacked and commit and assault in reacting to the attacker, and in doing so, protect themselves from bodily injury. See State v. Taylor, 33 N.C. App. 70, 234 S.E.2d 202 (1977)(defendant not free to drive away if three men attacked him within the space of a few minutes, and one broke his ribs, another held him while slamming a car door on his legs, and a third was shooting at him, defendant privileged to defend himself, even by returning the gunfire). When confronted with an assault that does not threaten the person assaulted with death or great bodily harm, a party claiming self-defense is required to retreat "if there is any way of escape open to him, although he is permitted to repel force by force and give blow for blow."
State v. Pearson, 288 N.C. 34, 39, 215 S.E.2d 598 602-603 1975). Additionally, there is no duty to retreat when (1) the person assaulted is confronted with an assault that threatens death or great bodily harm or (2) the person assaulted is not confronted with an assault that threatens death or great bodily harm and the assault occurs in the dwelling, place of business, or premises of the person assaulted, provided the person assaulted is free from fault in bringing on the difficulty. Id. at 39-40, 215 S.E.2d at 603. In the present case, the pushes and punch of L.B., an individual who weighed almost 100 pounds more than juvenile, threatened great bodily harm to the juvenile. Juvenile had no duty to retreat, as he was merely repelling force from the punch by L.B.. Juvenile was free from fault in bringing on the assault, as he was called names first, and L.B. walked across the room to confront juvenile, and proceeded to push and punch juvenile. Alternatively, if the court were to find that the pushes and punch to the face did not threaten great bodily harm, juvenile would submit that he had no duty to retreat as he was in school, and being a student, this should be considered his “place of business” under Pearson. A person assaulted in his home or place of business is said to already be "at the wall" and therefore need not retreat. SeeState v. Miller, 221 N.C. 356, 20 S.E.2d 274 (1942).
The trial court made no findings of fact as to issue of self-defense, and this indicates that the court did not fully consider the issue (Rp. 5). Most importantly, it is evident that the trial court did not consider the fact that the State had the burden of proving that a juvenile did not act in self-defense. See State v. Price, supra.
Based on the foregoing, it is evident that trial court erred in failing to find that the juvenile acted in self-defense. The evidence showed that: (1) a girl started calling juvenile names and he called her names back; (2) L.B. confronted juvenile about the names and a fight earlier that day; (3) L.B. told juvenile he had got beaten earlier in the day; (4) L.B. walked across the room to juvenile to continue the confrontation and pushed and hit juvenile, and indicated that juvenile was going to get “popped” (shot with a gun); (4) L.B. is half a foot taller than juvenile and weights approximately 85 pounds more than juvenile; (5) after juvenile was pushed and hit by L.B., juvenile reasonably was in fear of real and apparent danger; (6) it was reasonable for juvenile to act in self-defense by throwing L.B. to the ground after being assaulted by L.B.
Based on the evidence and the foregoing precedent, the adjudication of juvenile as a delinquent should be vacated. In the alternative, this matter should be remanded to the trial court so that it can make appropriate findings of fact and conclusions of law as to the juvenile’s self-defense.
CONCLUSION
Based on the foregoing, juvenile respectfully contends that his adjudication as a delinquent should be vacated and his disposition reversed, and in the alternative, this matter should be remanded to the trial court so that it can make appropriate findings of fact and conclusions of law as to the issue of self-defense.
Respectfully submitted, this the _____ day of May, 2006.
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Michelle FormyDuval Lynch
Attorney for Juvenile-Appellant
PO Box 528
Wrightsville Beach, NC 28480
(910) 641-7218
CERTIFICATE OF FILING AND SERVICE
I hereby certify that I have this day filed the foregoing brief by U.S. Mail, postage prepaid, properly addressed to Mr. John Connell, Clerk of Court, North Carolina Court of Appeals, as provided in the Rules of Appellate Procedure.
I further certify that I have this day served a copy of the foregoing brief upon the State, by U.S. Mail, postage prepaid, properly addressed, as follows:
Brenda Eaddy
Assistant Attorney General
9001 Mail Service Center
Raleigh, NC 27699-9001
This the ____ day of May, 2006.
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Michelle FormyDuval Lynch
Attorney for Juvenile-Appellant
[1] L.B. is also referred to as “Quail” (his nickname) in the transcript.