{ "id": 9249638, "name": "IN THE MATTER OF: MARGARET KAY MAY, DOB: 06-19-89", "name_abbreviation": "In re May", "decision_date": "2002-10-01", "docket_number": "No. COA01-1544", "first_page": "299", "last_page": "304", "citations": [ { "type": "official", "cite": "153 N.C. App. 299" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "25 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694774 ], "year": 1843, "opinion_index": 0, "case_paths": [ "/nc/25/0418-01" ] }, { "cite": "230 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "782", "parenthetical": "citing State v. Huntley, 25 N.C. 418 (1843)" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548831 ], "year": 1977, "pin_cites": [ { "page": "118", "parenthetical": "citing State v. Huntley, 25 N.C. 418 (1843)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0113-01" ] }, { "cite": "404 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "5" }, { "page": "5" }, { "page": "5" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 797", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525815 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "800" }, { "page": "800" }, { "page": "801" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0797-01" ] }, { "cite": "446 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "152", "parenthetical": "citing State v. Bennett, 102 N.C. App. 797, 800, 404 S.E.2d 4, 5 (1991)" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 725", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12140434 ], "year": 1994, "pin_cites": [ { "page": "726", "parenthetical": "citing State v. Bennett, 102 N.C. App. 797, 800, 404 S.E.2d 4, 5 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0725-01" ] }, { "cite": "707 P.2d 303", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1516179 ], "year": 1985, "pin_cites": [ { "page": "307", "parenthetical": "due process and right to counsel extend to a juvenile's first appeal as of right" } ], "opinion_index": 0, "case_paths": [ "/ariz/146/0505-01" ] }, { "cite": "808 S.W.2d 738", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1916846 ], "year": 1991, "pin_cites": [ { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/ark/305/0438-01" ] }, { "cite": "387 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11333627 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/387/0001-01" ] }, { "cite": "383 U.S. 541", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172664 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "562" }, { "page": "97-98" } ], "opinion_index": 0, "case_paths": [ "/us/383/0541-01" ] }, { "cite": "331 S.E.2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "667" }, { "page": "666" } ], "opinion_index": 0 }, { "cite": "314 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4688200 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "102" }, { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0099-01" ] }, { "cite": "386 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182629 ], "weight": 7, "year": 1967, "pin_cites": [ { "page": "744" }, { "page": "498" }, { "page": "744" }, { "page": "498" }, { "page": "744-45" }, { "page": "498-99" }, { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/us/386/0738-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "45 S.E. 957", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1903, "pin_cites": [ { "page": "958" } ], "opinion_index": 1 }, { "cite": "133 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659464 ], "year": 1903, "opinion_index": 1, "case_paths": [ "/nc/133/0725-01" ] }, { "cite": "230 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "782" } ], "opinion_index": 1 }, { "cite": "32 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548831 ], "year": 1977, "pin_cites": [ { "page": "118" } ], "opinion_index": 1, "case_paths": [ "/nc-app/32/0113-01" ] } ], "analysis": { "cardinality": 610, "char_count": 12165, "ocr_confidence": 0.753, "pagerank": { "raw": 1.1690489587517375e-07, "percentile": 0.5858596389210337 }, "sha256": "f2714bf80e2847b2fe2331c8048fb5fbb542f67e26fb6f658bac1414c37d274e", "simhash": "1:77e6e5e636669ade", "word_count": 2094 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge HUNTER dissents." ], "parties": [ "IN THE MATTER OF: MARGARET KAY MAY, DOB: 06-19-89" ], "opinions": [ { "text": "GREENE, Judge.\nMargaret Kay May (Juvenile) appeals from an order dated 28 August 2001 adjudicating her as a delinquent juvenile on a petition alleging simple affray in violation of N.C. Gen. Stat. \u00a7 14-33(a).\nOn 1 August 2001, Juvenile, an 11-year-old child and a resident of the Alamance Multiple Purpose Group Home (the Home), was involved in an altercation with another resident of the Home. The Home is located in a house in a residential community and has space for eight children. What began as an argument escalated into pushing and shoving and finally into grabbing each other, pulling hair, and scratching. The incident took place while the assailants and several others were walking in an open area in the front yard of the Home. A staff counselor at the Home intervened but was unable to stop the fight. A second counselor managed to separate the two children, but the fight quickly resumed. Ultimately, police were called, and the fight ended.\nAt the hearing on 23 August 2001, the State presented testimony from the two counselors. At the close of the State\u2019s evidence, Juvenile moved to dismiss the charge and that motion was denied. No evidence was presented on Juvenile\u2019s behalf. Subsequently, the trial court found the allegations in the petition to be \u201cproven . . . beyond a reasonable doubt\u201d and adjudicated Juvenile as a delinquent juvenile.\nJuvenile\u2019s attorney, unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal, filed an Anders brief asking this Court to conduct its own review of the record for possible prejudicial error. Attached to the Anders brief is a copy of a letter the attorney, according to his brief, states he mailed to Juvenile informing her of her right to \u201csubmit to the Court any written arguments [she] believe[d] to have merit.\u201d The letter also indicates the attorney furnished Juvenile copies of the Anders brief, the transcript of the trial proceedings, and the record on appeal. There is nothing in the letter indicating the brief and other documents were served on the parents of the Juvenile or some other person having custody of the Juvenile.\nThe issues are whether: (I) Anders reviews are appropriate in juvenile delinquent proceedings; if so, (II) adequate notice of the Anders filing was given to the necessary parties; and (III) the fight occurred in a public place.\nI\nIn 1967, the United States Supreme Court held that an attorney for an indigent criminal defendant, who after a conscientious examination of the record believes an appeal of his client\u2019s conviction would be \u201cwholly frivolous,\u201d may so advise the appellate court in a brief to that court \u201creferring to anything in the record that might arguably support the appeal.\u201d Anders v. California, 386 U.S. 738, 744, 18 L. Ed. 2d 493, 498 (1967); see State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). The appellate court, after a full examination of the proceedings, is to then decide whether the appeal is wholly frivolous or has some merit. Anders, 386 U.S. at 744, 18 L. Ed. 2d at 498; Kinch, 314 N.C. at 102, 331 S.E.2d at 667. The Anders brief, as it has come to be known, is grounded in the due process and equal protection clauses of the United States Constitution and assures an indigent defendant the \u201csame rights and opportunities on appeal ... as are enjoyed by those persons who are in a similar situation but are able to afford the retention of private counsel.\u201d Anders, 386 U.S. at 744-45, 18 L. Ed. 2d at 498-99.\nAlthough a juvenile delinquency proceeding is not for all purposes treated as a criminal proceedings, the United States Supreme Court has held a juvenile alleged to be delinquent is entitled to \u201cthe essentials of due process.\u201d Kent v. United States, 383 U.S. 541, 562, 16 L. Ed. 2d 84, 97-98 (1966). Essentials of due process have been determined to include the right to appointed counsel, the right against self incrimination, and the right to timely notice of the allegations. In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527 (1967). The essentials of due process also include the right and opportunity of an indigent juvenile to have her case presented on appeal. Gilliam v. State, 808 S.W.2d 738, 740 (Ark. 1991); see also State v. Berlat, 707 P.2d 303, 307 (Ariz. 1985) (due process and right to counsel extend to a juvenile\u2019s first appeal as of right). Thus, an attorney for an indigent juvenile adjudicated to be delinquent may file an Anders brief in the appellate courts of this state.\nIn this case, the attorney for the Juvenile has filed an Anders brief requesting this Court to \u201cconduct a full examination of the record on appeal for possible prejudicial error.\u201d Additionally, the brief notes the failure of the trial court to dismiss the petition on the grounds the affray did not occur in a public place might arguably support the appeal.\nII\nThe Anders court held that a copy of the \u201ccounsel\u2019s brief should be furnished the indigent and time allowed [her] to raise any points that [she] chooses.\u201d Anders, 386 U.S. at 744, 18 L. Ed. 2d at 498. Furthermore, this Court has held, in applying Anders, the defendant is entitled to all documents \u201cnecessary\u201d for her to conduct her own review of the case. State v. Mayfield, 115 N.C. App. 725, 726, 446 S.E.2d 150, 152 (1994) (citing State v. Bennett, 102 N.C. App. 797, 800, 404 S.E.2d 4, 5 (1991)). The documents deemed \u201cnecessary\u201d for the review include the transcript, the record on appeal, the appellate brief filed by the defendant\u2019s attorney, and the appellate brief filed by the State in response. See Bennett, 102 N.C. App. at 800, 404 S.E.2d at 5. The attorney also must provide the defendant with a letter informing her of her right to file a brief or other writing in the appellate court, and that letter must be filed in the appellate court. See Kinch, 314 N.C. at 101, 331 S.E.2d at 666.\nA delinquent juvenile includes any person \u201cless than 16 years of age but at least 6 years of age.\u201d N.C.G.S. \u00a7 7B-1501(7) (2001). It is thus unlikely the juvenile will appreciate the merits of the appeal filed by her attorney. Accordingly, in a juvenile delinquency appeal where the attorney for the juvenile has filed an Anders brief, the attorney must provide the \u201cnecessary\u201d documents and letter to the juvenile and her parents, guardian, or custodian. Cf. N.C.G.S. \u00a7 7B-1807 (2001).\nIn this case, the attorney served a copy of the necessary documents on Juvenile, along with the required letter. There is no indication in the record service of the \u201cnecessary\u201d documents and letter have been made upon Juvenile\u2019s parents, guardian, or custodian. This lack of service would ordinarily require us to enter an order directing the required service and delay review of this appeal until that service is completed and those persons have had an opportunity to file briefs in this Court. See Bennett, 102 N.C. App. at 801, 404 S.E.2d at 5. Because, however, the record reveals the trial court erred in failing to dismiss the petition filed against Juvenile based on the insufficiency of the State\u2019s evidence, the order of the trial court adjudicating Juvenile a delinquent juvenile must be reversed.\nIll\nA simple affray has been defined \u201cas a fight between two or more persons in a public place so as to cause terror to the people.\u201d In re Drakeford, 32 N.C. App. 113, 118, 230 S.E.2d 779, 782 (1977) (citing State v. Huntley, 25 N.C. 418 (1843)). A public place is defined to be\nA place to which the general public has a right to resort; not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighboring public.\nBlacks Law Dictionary 1231 (6th ed. 1990).\nIn this case, the fight occurred in the front yard of a house that was being used as a home for as many as eight children located in a neighborhood. Every indication in the record is that the Home was private property and not a place which the public had a right to resort or use. Accordingly, the trial court should have allowed the motion to dismiss.\nReversed.\nJudge TIMMONS-GOODSON concurs.\nJudge HUNTER dissents.\n. Neither the Department of Social Services nor the State are to be considered a custodian of the juvenile for the purposes of service of the Anders documents.\n. In this case, Juvenile\u2019s attorney did not file this letter in our Court. He did attach a copy of that letter to his brief, and we accept that in this case as sufficient compliance with Anders. The better practice, however, is to file the letter in this Court, along with a certificate of service. See N.C.R. App. P. 26(d).", "type": "majority", "author": "GREENE, Judge." }, { "text": "HUNTER, Judge,\ndissenting.\nI respectfully dissent from the majority opinion\u2019s conclusion that the trial court should have allowed the motion to dismiss against Juvenile. Specifically, I take issue with the majority\u2019s conclusion that the physical altercation between Juvenile and another resident of the Home did not occur in a public place.\nAs stated in the majority opinion, a simple affray has clearly been defined \u201cas a fight between two or more persons in a public place so as to cause terror to the people.\u201d In re Drakeford, 32 N.C. App. 113, 118, 230 S.E.2d 779, 782 (1977). However, since our courts have never clearly defined a \u201cpublic place\u201d in relation to this misdemeanor, the majority defines the term using Black\u2019s Law Dictionary. Even though I agree that this definition is generally applicable to simple affrays, our case law indicates that the number of persons viewing the alleged affray must be considered as well.\nIn State v. Fritz, 133 N.C. 725, 45 S.E. 957 (1903), a defendant appealed an order finding him guilty of simple affray for engaging in a fight with another man at a corner tree midway between their homes and in the presence of seven other people. The defendant argued, in part, that he was erroneously convicted of simple affray because the fight did not occur in a public place. Our Supreme Court affirmed the guilty verdict and held that the fighting of two persons in the presence of others made the location a public place. Id. at 728, 45 S.E. at 958.\nAlthough Fritz does not specifically define a \u201cpublic place,\u201d it does indicate that the presence of several people can qualify a location that is normally private property as a public place for simple affray purposes. Here, the evidence showed that a physical altercation between Juvenile and another juvenile occurred on the grounds of the Home. The altercation took place in the presence of two counselors and several residents of the Home. Thus, it is my conclusion that the grounds of the Home are a \u201cpublic place\u201d in light of the facts in this case and the holding in Fritz. To find otherwise would lend itself to a very strict interpretation of what constitutes a \u201cpublic place,\u201d thereby preventing the police from ever being able to arrest and charge a person with simple affray if that individual enters into a fight with another person on private property regardless of how many people are present and placed in terror.\nAccordingly, the trial court did not err in denying Juvenile\u2019s motion to dismiss.", "type": "dissent", "author": "HUNTER, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Bart Njoku-Obi, for the State.", "Benjamin M. Turnage for the Juvenile Appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: MARGARET KAY MAY, DOB: 06-19-89\nNo. COA01-1544\n(Filed 1 October 2002)\n1. Appeal and Error\u2014 Anders brief \u2014 service on juvenile\nIn an appeal decided on other grounds, it was noted that service of Anders documents on a juvenile was insufficient where the documents were not served on the juvenile\u2019s parents, guardian, or custodian.\n2. Assault\u2014 simple affray \u2014 private property\nThe trial court should have dismissed a charge of simple affray against a juvenile which arose from a fight in the front yard of a house used as a group home for as many as eight children. Every indication in the record was that the home was private property and not a place which the public had the right to use.\nJudge Hunter dissenting.\nAppeal by juvenile from order filed 28 August 2001 by Judge Ernest J. Harviel in Alamance County District Court., Heard in the Court of Appeals 20 August 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Bart Njoku-Obi, for the State.\nBenjamin M. Turnage for the Juvenile Appellant." }, "file_name": "0299-01", "first_page_order": 329, "last_page_order": 334 }