{ "id": 8169994, "name": "STATE OF NORTH CAROLINA v. ANTONIO TOREZ COUSART", "name_abbreviation": "State v. Cousart", "decision_date": "2007-03-06", "docket_number": "No. COA06-569", "first_page": "150", "last_page": "155", "citations": [ { "type": "official", "cite": "182 N.C. App. 150" } ], "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": "627 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635399 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "612" }, { "page": "612", "parenthetical": "quoting State v. Lyons, 330 N.C. 298, 303, 412 S.E.2d 308, 312 (1991)" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0609-01" ] }, { "cite": "341 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 190", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522655 ], "year": 1986, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0190-01" ] }, { "cite": "607 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "10", "parenthetical": "quoting State v. Hunt, 80 N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986)" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 770", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8414231 ], "year": 2005, "pin_cites": [ { "page": "776", "parenthetical": "quoting State v. Hunt, 80 N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0770-01" ] }, { "cite": "459 S.E.2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "196" } ], "opinion_index": 0 }, { "cite": "340 N.C. 720", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790161 ], "year": 1995, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0720-01" ] }, { "cite": "605 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "233", "parenthetical": "quoting State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995)" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 225", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411020 ], "year": 2004, "pin_cites": [ { "page": "233", "parenthetical": "quoting State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0225-01" ] }, { "cite": "173 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "903", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "276 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562301 ], "year": 1970, "pin_cites": [ { "page": "509", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0499-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-316.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "412 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "312" } ], "opinion_index": 0 }, { "cite": "330 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508946 ], "year": 1991, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0298-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "180" } ], "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "360 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788582 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "373-74" }, { "page": "373-74", "parenthetical": "quoting State v. Lyons, 330 N.C. 298, 303, 412 S.E.2d 308, 312 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0368-01" ] } ], "analysis": { "cardinality": 611, "char_count": 12266, "ocr_confidence": 0.752, "pagerank": { "raw": 1.0371549800834406e-07, "percentile": 0.5498038688742085 }, "sha256": "4dbf73c63c09eb3cfc4a05e88fc1d752e13ff037fb1bf5462a90b7712712ffcc", "simhash": "1:066fa27a54da3bf6", "word_count": 2009 }, "last_updated": "2023-07-14T22:32:14.097428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and JACKSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANTONIO TOREZ COUSART" ], "opinions": [ { "text": "LEVINSON, Judge.\nAntonio Cousart (defendant) appeals from judgment entered on his convictions of misdemeanor larceny and contributing to the delinquency of a minor. We find no error in part and reverse in part.\nIn February 2004 defendant was arrested for felony larceny and contributing to the delinquency of a minor. He was subsequently indicted for both offenses, as well as breaking and entering a motor vehicle. The case was tried before a jury at the 17 October 2005 session of criminal court in Mecklenburg County, North Carolina. At trial, the State\u2019s evidence tended to show, in pertinent part, the following:\nM.D. Burpeau testified that on 5 February 2004 he was an officer with the Charlotte-Mecklenburg Police Department and was assigned to the night shift. At around 3:00 a.m., Officer Burpeau drove into the parking lot of an apartment complex, where he immediately noticed a car driving towards \u201canother section\u201d of the complex. His suspicions were aroused because of the late hour, so Officer Burpeau circled around and drove towards the vehicle. As he approached the car he had seen, Officer Burpeau noticed a Honda automobile parked in the lot with a door slightly open and an interior light on. When he looked into that car, Officer Burpeau saw that there was a hole in the car\u2019s dashboard where a music system would generally be installed. The car that Officer Burpeau had seen when he first entered the lot was only about fifty yards from the Honda. When Officer Burpeau reached the car, he saw the defendant in the front of the car and asked him to step outside. Defendant explained that he could not get out of the car because he was paralyzed from the waist down, so Officer Burpeau summoned another officer for assistance. Defendant told Officer Burpeau that he and his brother had come to the apartment complex to visit someone. While they waited for backup to arrive, a \u201cyoung juvenile\u201d approached and identified himself as defendant\u2019s fourteen year old younger brother.\nAfter about ten minutes, Officer Antley of the Charlotte-Mecklenburg Police Department arrived. When the law enforcement officers lifted defendant out of the car, they saw the face plate of a car CD player, and more stereo equipment was found in the trunk of the car. Defendant claimed ownership of all the stereo equipment found in the car. He was placed under arrest for contributing to the delinquency of a minor, specifically for allowing his younger brother to drive the car. Other testimony tended to show that the audio equipment found in defendant\u2019s car had been taken from the Honda that night.\nThe defendant did not present any evidence.\nThe jury returned verdicts of guilty of misdemeanor larceny and contributing to the delinquency of a minor, and was unable to reach a verdict on the charge of breaking and entering a motor vehicle. Defendant received two suspended forty five day jail terms. From \u2022these convictions and judgments defendant appeals.\nDefendant argues first that, as to contributing to the delinquency of a minor, the trial court committed plain error by failing to require the jury to agree on the offense for which the juvenile could have been adjudicated delinquent. Trial evidence was sufficient to support a conclusion that defendant aided or encouraged his younger brother to: (1) drive without a license; (2) break into a motor vehicle; and/or (3) steal stereo equipment from the vehicle. Defendant contends that the trial court was required to instruct the jury that it must agree on one of these specific acts, and that the' court\u2019s failure to do so \u201cis a violation of Article I, \u00a7 24 of the North Carolina Constitution\u201d which protects defendant\u2019s right to a unanimous jury verdict. We disagree.\n\u201cThe North Carolina Constitution and North Carolina Statutes require a unanimous jury verdict in a criminal jury trial.\u201d State v. Lawrence, 360 N.C. 368, 373-74, 627 S.E.2d 609, 612 (2006). However:\nIn State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990), this Court considered whether disjunctive jury instructions . . . for charges of indecent liberties with a minor resulted in an ambig\u00faous or uncertain verdict such that a defendant\u2019s right to a unanimous verdict might have been violated. As explained in a subsequent opinion discussing the Hartness line of cases, this Court held that \u201cif the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.\u201d\nState v. Lawrence, 360 N.C. 368, 373-74, 627 S.E.2d 609, 612 (2006) (quoting State v. Lyons, 330 N.C. 298, 303, 412 S.E.2d 308, 312 (1991)). In Hartness, the Court concluded that a violation of the crime of indecent liberties \u201cis a single offense which may be proved by evidence of the commission of any one of a number of acts.\u201d Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (1990). The Court reasoned that the accused\u2019s \u201cpurpose for committing such act is the gravamen of '[the] offense; the. particular act performed is immaterial.\u201d Id. Thus, Hartness concluded, there was no unanimity problem even if jurors did not agree on the particular act(s) that occurred.\nIn the instant case, defendant was charged with violating N.C. Gen. Stat. \u00a7 14-316.1 (2005):\nAny person who is at least 16 years old who knowingly or willfully causes, encourages, or aids any juvenile within the jurisdiction of the court to be in a place or condition, or to commit an act whereby the juvenile could be adjudicated delinquent.. . shall be guilty of a Class 1 misdemeanor. . . .\n\u201cSimply stated, any person who knowingly does any act to produce, promote or contribute to any condition of delinquency of a child is in violation of the statute.\u201d State v. Sparrow, 276 N.C. 499, 509, 173 S.E.2d 897, 903 (1970) (emphasis added). We conclude, applying the reasoning of Hartness and cases interpreting it, that the gravamen of the crime of contributing to the delinquency of a minor is the conduct on the part of the accused: his willful \u201ccaus[ing], encouraging], or aid[ing] . . . .\u201d We further conclude that the requirement of unanimity is satisfied as long as all jurors agree that the juvenile committed \u201can act whereby [he] could be adjudicated delinquent. . . .\u201d See G.S. \u00a7 14-316.1. They need not, however, agree on the particular act. This assignment of error is overruled.\nDefendant next argues that the court erred by sentencing him to twenty-four months probation without finding, as required by N.C. Gen. Stat. \u00a7 15A-1343.2(d) (2005), that more than eighteen months probation was necessary. We agree.\nDefendant had no prior convictions and was properly found to have a Prior Record Level I for two Class 1 misdemeanors. N.C. Gen. Stat. \u00a7 15A-1340.21(b)(l) (2005). The trial court properly sentenced defendant to terms of forty-five days for each offense, and placed him on supervised probation. However, the trial court did not comply with G.S. \u00a7 16A-1343.2(d):\n. . . Unless the court makes specific findings that longer or shorter periods of probation are necessary, the length of the original period of probation . . . shall be as follows:\n(1) For misdemeanants sentenced to community punishment, not less than six nor more than 18 months. . . .\nDefendant argues, and the State concedes, that the trial court erred by placing defend\u00e1nt on probation for twenty-four months without making the findings required by G.S. \u00a7 15A-1343.2(d). Accordingly, defendant\u2019s sentence must be reversed and remanded for resentencing.\nFinally, defendant argues that the trial court erred by ordering defendant to pay $787.00 restitution, on the grounds that (1) the record did not support this amount of restitution; and (2) the court did not comply with the requirements of N.C. Gen. Stat. \u00a7 15A-1340.36 (2005). Assuming, arguendo, that defendant properly preserved these issues for review, we reject defendant\u2019s arguments.\nThe owner of the stolen stereo equipment testified at trial that it originally cost $787.00. Other evidence indicated that some stereo components were never recovered, others were damaged by having wires cut, and that the car had a hole in the dashboard. The trial court found, based on viewing the CD equipment and reviewing the testimony of the law enforcement officers and the car\u2019s owner, that restitution in the amount that the stereo had originally cost was \u201creasonable to cover the damage that was done to the vehicle and to the equipment.\u201d\n\u201c \u2018[T]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing.\u2019 \u201d State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (quoting State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995)) (citation omitted). \u201cHowever, \u2018[w]hen, as here, there is some evidence as to the appropriate amount of restitution, the recommendation will not be overruled on appeal.\u2019 \u201d State v. Davis, 167 N.C. App. 770, 776, 607 S.E.2d 5, 10 (2005) (quoting State v. Hunt, 80 N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986)). This assignment of error is overruled.\nWe have reviewed defendant\u2019s remaining argument, that the trial court failed to consider certain factors in setting the amount of restitution. Assuming, arguendo, that the issue is preserved for review, we find it to be without merit.\nFor the reasons discussed above, we conclude that defendant had a fair trial, free of reversible error. However, his sentence must be reversed and remanded for resentencing.\nNo error in part, reversed and remanded in part.\nJudges GEER and JACKSON concur.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jemigan, for the State.", "Mecklenburg County Office of the Public Defender, by Assistant Public Defender Julie Ramseur Lewis, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTONIO TOREZ COUSART\nNo. COA06-569\n(Filed 6 March 2007)\n1. Minors\u2014 contributing to delinquency of minor \u2014 no requirement jury must agree on offense\nThe trial court did not commit plain error in a contributing to the delinquency of a minor case by failing to require the jury to \u25a0agree on the offense for which the juvenile could have been adjudicated delinquent, because: (1) the evidence was sufficient to support a conclusion that defendant aided or encouraged his younger brother to drive without a license, break into a motor vehicle, and/or steal stereo equipment from the vehicle; (2) any person who knowingly does any act to produce, promote, or contribute to any condition of delinquency of a child is in violation of N.C.G.S. \u00a7 14-316.1; (3) the gravamen of the crime is the conduct on the part of the accused which is his willful causing, encouraging, or aiding; and (4) the requirement of unanimity is satisfied as long as all jurors agree that the juvenile committed an act whereby he could be adjudicated delinquent.\n2. Probation and Parole\u2014 failure to make findings required by N.C.G.S. \u00a7 15A-1343.2(d)\nThe trial court erred in a misdemeanor larceny and contributing to the delinquency of a minor case by sentencing defendant to twenty-four months of probation without making the findings required by N.C.G.S. \u00a7 15A-1343.2(d) that more than eighteen months of probation was required, and defendant\u2019s sentence is reversed and remanded for resentencing.\n3. Sentencing\u2014 restitution \u2014 amount\nThe trial court did not err in a misdemeanor larceny and contributing to the delinquency of a minor case by ordering defendant to pay $787 restitution even though defendant contends the record did not support this amount and the court did not comply with the requirements of N.C.G.S. \u00a7 15A-1340.36, because: (1) the owner of the stolen stereo equipment testified at trial that it originally cost $787; (2) evidence revealed that some stereo components were never recovered, others were damaged by having wires cut, and the car had a hole in the dashboard; (3) when, as here, there is some evidence as to the appropriate amount of restitution, the recommendation will not be overruled on appeal; and (4) the trial court considered the pertinent factors in setting the amount of restitution.\nAppeal by defendant from judgment entered 21 October 2005 by Judge J. Gentry Caudill in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 December 2006.\nAttorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jemigan, for the State.\nMecklenburg County Office of the Public Defender, by Assistant Public Defender Julie Ramseur Lewis, for defendant." }, "file_name": "0150-01", "first_page_order": 182, "last_page_order": 187 }