{ "id": 4166522, "name": "IN THE MATTER OF: D.M.B.", "name_abbreviation": "In re D.M.B.", "decision_date": "2009-05-05", "docket_number": "No. COA08-618", "first_page": "775", "last_page": "779", "citations": [ { "type": "official", "cite": "196 N.C. App. 775" } ], "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": "640 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637759 ], "year": 2007, "pin_cites": [ { "page": "761" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0757-01" ] }, { "cite": "671 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642552 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/671/0532-01" ] }, { "cite": "362 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12642553 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/671/0533-01" ] }, { "cite": "657 S.E.2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640598 ], "year": 2008, "pin_cites": [ { "page": "899" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0894-01" ] }, { "cite": "546 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "411" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435166 ], "year": 2001, "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0461-01" ] }, { "cite": "181 N.C. App. 579", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375468 ], "year": 2007, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0579-01" ] }, { "cite": "189 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156084 ], "year": 2008, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0354-01" ] }, { "cite": "235 S.E.2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "280-81" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549715 ], "year": 1977, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0356-01" ] }, { "cite": "577 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "322", "parenthetical": "\"Defendant's attempt to invoke plain error review is inappropriate as this assignment of error concerns the sufficiency of the evidence, not an instructional error or an error concerning the admissibility of evidence.\"" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191220 ], "year": 2003, "pin_cites": [ { "page": "494", "parenthetical": "\"Defendant's attempt to invoke plain error review is inappropriate as this assignment of error concerns the sufficiency of the evidence, not an instructional error or an error concerning the admissibility of evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0490-01" ] }, { "cite": "462 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "504", "parenthetical": "plain error analysis unavailable where the defendant failed to properly preserve the issue of sufficiency of the evidence" } ], "opinion_index": 0 }, { "cite": "341 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793180 ], "year": 1995, "pin_cites": [ { "page": "676-77", "parenthetical": "plain error analysis unavailable where the defendant failed to properly preserve the issue of sufficiency of the evidence" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0658-01" ] }, { "cite": "596 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "322", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 673", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8900225 ], "year": 2004, "pin_cites": [ { "page": "677", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0673-01" ] }, { "cite": "341 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694780 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0203-01" ] }, { "cite": "393 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "citing State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986)" } ], "opinion_index": 0 }, { "cite": "326 N.C. 803", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307328, 5308545, 5307673, 5307741, 5304895 ], "year": 1990, "pin_cites": [ { "parenthetical": "citing State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0803-04", "/nc/326/0803-01", "/nc/326/0803-03", "/nc/326/0803-02", "/nc/326/0803-05" ] }, { "cite": "389 S.E.2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "140", "parenthetical": "citing State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986)" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 464", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521692 ], "year": 1990, "pin_cites": [ { "page": "471", "parenthetical": "citing State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0464-01" ] }, { "cite": "456 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "808", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "340 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790125 ], "year": 1995, "pin_cites": [ { "page": "155", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0119-01" ] }, { "cite": "65 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1951, "pin_cites": [ { "page": "10" }, { "page": "10-11", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "233 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613655 ], "weight": 2, "year": 1951, "pin_cites": [ { "page": "583" }, { "page": "583", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0581-01" ] }, { "cite": "301 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "97", "parenthetical": "quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)" } ], "opinion_index": 0 }, { "cite": "308 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710741 ], "year": 1983, "pin_cites": [ { "page": "167", "parenthetical": "quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0159-01" ] } ], "analysis": { "cardinality": 571, "char_count": 9814, "ocr_confidence": 0.736, "pagerank": { "raw": 6.391342495904715e-08, "percentile": 0.3958520361611816 }, "sha256": "a63ff14ef3aed133d721c46af89ca317b336311fec3f0c18e89c7019f23dc8c3", "simhash": "1:c3385d2c662e6725", "word_count": 1651 }, "last_updated": "2023-07-14T15:08:58.268450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Robert C. HUNTER and ELMORE concur." ], "parties": [ "IN THE MATTER OF: D.M.B." ], "opinions": [ { "text": "JACKSON, Judge.\nD.M.B. (\u201cthe juvenile\u201d) appeals his 27 November 2007 adjudication and disposition for assault causing serious bodily injury. For the reasons stated below, we affirm, but remand with instructions as to the order of restitution.\nOn 19 October 2007, T.G. (\u201cthe victim\u201d) was a fifteen-year-old student at Nash Central High School. When he got off the school bus that afternoon, the juvenile \u2014 whom he had not seen before as he did not ride his bus and did not go to his school \u2014 approached him and asked him about something that was \u201cgoing on\u201d at school. After telling the juvenile, \u201cI don\u2019t know what you\u2019re talking about,\u201d the victim began walking toward his home. The juvenile then began hitting the victim in the back of the head, causing him to \u201chit the ground\u201d with blood coming from his mouth. He felt dizzy.\nAfter the juvenile stopped hitting the victim, the victim walked home, rinsed his mouth, and laid down. When his mother returned home from work, she took him to the hospital where he was x-rayed, CT scanned, and prescribed pain medication. Although the victim had broken both jaws and had a facial fracture, he was sent home. The next day, the victim\u2019s mother took him to another hospital, where arrangements were made for surgery. Doctors inserted plates on the left and right side of his jaw, under his chin, and in the front, as well as wired his teeth together so that he could eat only through a straw.\nA police investigation led to the juvenile\u2019s home. Although he was not home when police arrived, his mother agreed to bring him in for questioning in the morning. In his mother\u2019s presence, the juvenile was read his rights and admitted that he had hit the victim. A juvenile delinquency petition was filed on 25 October 2007.\nOn 27 November 2007, the trial court adjudicated the juvenile delinquent and by disposition order filed 7 December 2007, ordered him to pay $1000.00 in restitution for the victim\u2019s benefit, serve seventy-two hours of community service, serve twelve months of supervised probation, and not associate with the victim and two witnesses. The juvenile appeals.\nThe juvenile first argues that the trial court did not fulfill its duty to be fair and impartial because it made improper comments during disposition. We disagree.\n\u201cIt is fundamental to our system of justice that each and every person charged with a crime be afforded the opportunity to be tried \u2018before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.\u2019 \u201d State v. Harris, 308 N.C. 159, 167, 301 S.E.2d 91, 97 (1983) (quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)). To that end, North Carolina General Statutes, section 15A-1222 prohibits a trial judge from expressing \u201cany opinion in the presence of the jury on any question of fact to be decided by the jury[,]\u201d during any stage of the trial. N.C. Gen. Stat. \u00a7 15A-1222 (2007). This Court uses' a totality of the circumstances test to evaluate whether a judge\u2019s comments \u201ccross into the realm of impermissible opinion.\u201d State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995) (citations omitted).\nThe bare possibility, however, that an accused may have suffered prejudice from the conduct or language of the judge is not sufficient to overthrow an adverse verdict. The criterion for determining whether or not the trial judge deprived an accused of his right to a fair trial by improper comments or remarks in the hearing of the jury is the probable effect of the language upon the jury. In applying this test, the utterance of the judge is to be considered in the light of the circumstances under which it was made.\nState v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10-11 (1951) (citations omitted).\nWe note that section 15A-1222 is inapplicable when the judge\u2019s comments are not made in the presence of the jury. State v. Joyce, 97 N.C. App. 464, 471, 389 S.E.2d 136, 140, disc. rev. denied, 326 N.C. 803, 393 S.E.2d 902 (1990) (citing State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986)). Here, there was no jury. There also is no indication that the trial judge was not impartial in his role as finder of fact. He did not act on his desire to impose a harsher punishment than the law allowed. After having adjudicated the juvenile delinquent, the trial judge explained that he was confined to imposing a Level I or Level II disposition, despite his desire to impose a harsher punishment. He then imposed disposition at both Level I and Level II, as permitted by law. We can discern no prejudice to the juvenile by the court\u2019s comments. Therefore, this argument is without merit.\nThe juvenile also argues that the trial court should have dismissed the charge against him because the State failed to present sufficient evidence that the victim suffered a serious bodily injury. This issue has not been preserved for our review.\nThe juvenile admits that trial counsel failed to bring a motion to dismiss at the close of the State\u2019s evidence and again at the close of all the evidence, thereby failing to preserve the issue. However, he contends that this Court should review the matter pursuant to the plain error doctrine. We disagree.\nThe juvenile is correct that the North Carolina Rules of Appellate Procedure permit a criminal defendant to assign error to an issue not otherwise preserved \u201cwhere the judicial action questioned is specifically and distinctly contended to amount to plain error.\u201d N.C. R. App. P. 10(c)(4) (2007). However, his assignments of error do not \u201cspecifically and distinctly\u201d contend that failure to dismiss the charge amounted to plain error.\nIn addition, plain error \u201conly applies to jury instructions and evidentiary matters in criminal cases. While this is a criminal case, defendant\u2019s failure to [move] to dismiss does not trigger a plain error analysis.\u201d State v. Freeman, 164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004) (citations omitted); see also State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995) (plain error analysis unavailable where the defendant failed to properly preserve the issue of sufficiency of the evidence); State v. Bartley, 156 N.C. App. 490, 494, 577 S.E.2d 319, 322 (2003) (\u201cDefendant\u2019s attempt to invoke plain error review is inappropriate as this assignment of error concerns the sufficiency of the evidence, not an instructional error or an error concerning the admissibility of evidence.\u201d).\nFinally, the juvenile argues that the trial court committed reversible error by failing to make appropriate findings of fact in support of its restitution order. We agree that the court erred and remand to the trial court for appropriate further action.\n\u201c[A] requirement that a juvenile make restitution as a condition of probation must be supported by the record and appropriate findings of fact which demonstrate that the best interest of the juvenile will be promoted by the enforcement of the condition.\u201d In re Berry, 33 N.C. App. 356, 360, 235 S.E.2d 278, 280-81 (1977). Here, the State concedes that the trial court failed to make appropriate findings of fact to support its restitution order. Accordingly, we remand for purposes of making appropriate findings of fact to support an order of restitution. See In re Z.A.K., 189 N.C. App. 354, 362, 657 S.E.2d 894, 899, disc. rev. denied, 362 N.C. 682, 671 S.E.2d 532 (2008); State v. Replogle, 181 N.C. App. 579, 584, 640 S.E.2d 757, 761 (2007); In re Schrimpsher, 143 N.C. App. 461, 466, 546 S.E.2d 407, 411 (2001).\nNo error in part and remanded with instructions in part.\nJudges Robert C. HUNTER and ELMORE concur.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Larissa S. Williamson, for the State.", "Lisa Skinner Lefler, for juvenile-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: D.M.B.\nNo. COA08-618\n(Filed 5 May 2009)\n1. Juveniles\u2014 partiality \u2014 judge commenting on desire to impose harsher punishment\nThe trial court did not violate a juvenile\u2019s right to a fair and impartial trial on the charge of assault causing serious bodily injury by allegedly making improper comments during disposition that he was confined to imposing a Level I or Level II disposition despite his desire to impose a harsher punishment because: (1) there was no jury and no indication the trial judge was not impartial in his role as factfinder; (2) the judge did not act on his desire to impose a harsher punishment than the law allowed; and (3) there was no prejudice to the juvenile by the court\u2019s comments.\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to bring motion to dismiss at close of State\u2019s evidence and close of all evidence \u2014 failure to allege plain error\nAlthough a juvenile contends the trial court erred by failing to dismiss the charge of assault causing serious bodily injury based on alleged insufficient evidence that the victim suffered a serious bodily injury, this assignment of error is dismissed because this issue was not preserved for review based on: (1) the juvenile\u2019s failure to bring a motion to dismiss at the close of the State\u2019s evidence and again at the close of all evidence; and (2) the juvenile\u2019s assignments of error failed to specifically and distinctly contend that failure to dismiss the charge amounted to plain error, and plain error only applies to jury instructions and evidentiary matters in criminal cases.\n3. Juveniles; Probation and Parole\u2014 restitution \u2014 failure to make appropriate findings of fact\nThe trial court erred in a juvenile case by failing to make appropriate findings of fact in support of its order that the juvenile pay restitution as a condition of probation, and the case is remanded to the trial court for appropriate further action.\nAppeal by juvenile from orders entered 27 November 2007 by Judge Robert A. Evans in Nash County District Court. Heard in the Court of Appeals 10 December 2008.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Larissa S. Williamson, for the State.\nLisa Skinner Lefler, for juvenile-appellant." }, "file_name": "0775-01", "first_page_order": 803, "last_page_order": 807 }