Opinion
No. COA02-992
Filed 6 May 2003 This case not for publication
Appeal by respondent from adjudication and disposition orders entered 28 January and 25 February 2002 by Judge Mike Gentry in Caswell County District Court. Heard in the Court of Appeals 28 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. David G. Powell for respondent appellant.
Caswell County No. 01J40.
Respondent Bridgette Nicole Richardson (the juvenile) was charged by juvenile petitions with resisting a public officer in violation of N.C. Gen. Stat. § 14-223 (2001), and making a false report to a law enforcement agency or officer in violation of N.C. Gen. Stat. § 14-225 (2001). The State's evidence tended to show that on 27 October 2001, a physical altercation involving individuals other than the juvenile occurred outside the Caswell County Courthouse. When officers from the Caswell County Sheriff's Department responded to the scene and sought to break up the fight and handcuff one of the persons involved, the juvenile "jumped in" and demanded that one of the responding officers, Deputy Mike New, "get [his] hands off [of Greg Bissell]." The juvenile also pulled at Deputy New's shirt. The contact lasted about five to ten seconds before the juvenile backed away upon the order of the deputy. Deputy New was wearing a vest with the word "Sheriff" across the back and a badge affixed to the front.
The juvenile was subsequently arrested and charged with resisting a public officer under N.C. Gen. Stat. § 14-223. When she was taken to the Magistrate's Office for processing she told Deputy New that she was sixteen, but denied having any identification or any other way of proving her date of birth. When told by the Magistrate that she would be placed in jail until her parents arrived to pick her up, respondent restated her age as fifteen and produced a birth certificate to substantiate her age. The existing warrant was destroyed and removed from the computer. Another warrant was later redrawn. The juvenile's false information resulted in a delay of about 40 minutes.
The juvenile did not present evidence during the adjudicatory hearing. The district court subsequently found that the State had proven the allegations of the juvenile petitions beyond a reasonable doubt, and in a consolidated order, adjudicated the juvenile to be delinquent. After a dispositional hearing in this matter, the district court placed the juvenile on probation. The juvenile appeals.
On appeal, the juvenile first argues that the State's evidence as to the charge of resisting a public officer varied fatally from the allegations of the juvenile petition. Accordingly, the juvenile contends that the adjudication and disposition orders entered thereon must be vacated. We disagree.
At the outset we note that, much like an adult criminal defendant would, the juvenile has waived review of this issue because she did not challenge the facial validity of the juvenile petition at the adjudicatory or dispositional hearings. See State v. Call, 353 N.C. 400, 428, 545 S.E.2d 190, 208 (2001), cert. denied, 534 U.S. 1046, 151 L.Ed.2d 548 (2001) (absent allegations that an indictment is facially invalid, as a general rule, a defendant waives an attack on the indictment when the indictment is not challenged at trial). See also In re Lineberry, ___ N.C. App. ___, ___, 572 S.E.2d 229, 233 (2002) ("`Juveniles in delinquency proceedings are entitled to constitutional safeguards similar to those afforded adult criminal defendants.'"). Id. (quoting In re Arthur, 27 N.C. App. 227, 229, 218 S.E.2d 869, 871 (1975)).
Even assuming arguendo that this issue was properly preserved, we conclude there was no fatal variance between the allegations of the juvenile petition charging a violation of N.C. Gen. Stat. § 14-223 and the evidence presented by the State during the adjudicatory hearing. The subject juvenile petition alleged that
the juvenile unlawfully, [and] willfully . . . did: resist, delay, and obstruct Mike New, a public officer holding the office of Caswell County Sheriff's Department, by refusing to cooperate with the officer when he was detaining other suspects on the scene. At that time, the officer was discharging and attempting to discharge a duty of his office, detaining other suspects for committing criminal offenses.
The evidence in this case tended to show that while Deputy New was attempting to subdue a suspect who was fighting outside the Caswell County Courthouse, the juvenile began to pull at the deputy's uniform and told him to let go of the suspect. Although the juvenile ceased her actions some ten seconds after being ordered by Deputy New to do so, the evidence does indeed support the allegations of the juvenile petition. Hence, there is not a fatal variance between the juvenile petition and the evidence at the adjudicatory hearing. The juvenile's argument to the contrary fails.
As argued by the juvenile and conceded by the State, however, the juvenile petition charging the juvenile with making a false report to a law enforcement agency or officer in violation of N.C. Gen. Stat. § 14-225 is wholly insufficient to charge that offense and must be vacated. The elements of making a false report to a law enforcement agency or officer under section 14-225 are as follows:
(1) willfully
(2) making or causing to be made,
(3) a false, misleading, or unfounded report,
(4) for the purpose of
(a) interfering with the operation of a law enforcement agency, or
(b) hindering or obstructing any law enforcement officer in performing official duties.
See State v. Hughes, 353 N.C. 200, 205, 539 S.E.2d 625, 629 (2000). In this instance, the juvenile petition alleged only that "the juvenile, unlawfully [and] willfully . . . did: . . . hinder and obstruct the law enforcement officer in the performance of his duty, detaining suspects in a criminal matter." These allegations fail to make the necessary factual allegations to apprise the juvenile of the offense charged. Accordingly, the juvenile adjudication and disposition orders entered as to this offense must be vacated. See State v. Norman, 149 N.C. App. 588, 562 S.E.2d 453 (2002) (vacating judgment where indictment failed to allege the necessary elements to charge the subject offense).
In her final argument, the juvenile contends that the trial court erred in adjudicating her to be delinquent where the evidence was insufficient to support such a finding or conclusion. We first note that the juvenile has waived review of this issue as she failed to move to dismiss the charges at the close of all of the evidence. See Lineberry, ___ N.C. App. at ___, 572 S.E.2d at 232 (holding that a juvenile who made no motion to dismiss the juvenile petition at the close of the evidence during the adjudicatory hearing had waived his right to challenge the sufficiency of the evidence on appeal); and N.C.R. App. P. 10(b)(3) (2003). Additionally or alternatively, in the event this issue was properly before the Court, we summarily conclude that there is plenary evidence on this record to support the trial court's finding that
on or about October 27, 2001, the juvenile unlawfully and willfully did resist, delay and obstruct Mike New, a public officer holding the office of Caswell County Sheriff's Department, by refusing to cooperate with the officer when he was detaining other suspects on the scene. At that time, the officer was discharging and attempting to discharge a duty of his office, detaining other suspects for committing criminal offenses, in violation of G.S. 14-223.
The trial court, therefore, did not err in adjudicating the juvenile delinquent based upon this finding. As discussed previously, however, the trial court's adjudication and disposition orders based upon the juvenile's violation of N.C. Gen. Stat. § 14-225 must be vacated.
In light of the foregoing, the adjudication and disposition orders as to the charge of resisting a public officer are affirmed. The adjudication and disposition orders as to the offense of making a false report to a law enforcement agency or officer are vacated.
Affirmed in part; and vacated in part.
Judges MARTIN and CALABRIA concur.
Report per Rule 30(e).