{ "id": 4172142, "name": "IN THE MATTER OF: D.K., A Minor Child", "name_abbreviation": "In re D.K.", "decision_date": "2009-11-03", "docket_number": "No. COA09-495", "first_page": "785", "last_page": "789", "citations": [ { "type": "official", "cite": "200 N.C. App. 785" } ], "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": "654 S.E.2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640012 ], "year": 2007, "pin_cites": [ { "page": "23-24" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0021-01" ] }, { "cite": "652 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639693 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "345", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 7B-2405 (2005)" }, { "page": "347" }, { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0344-01" ] }, { "cite": "187 N.C. App. 803", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376440 ], "year": 2007, "pin_cites": [ { "page": "805-06" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0803-01" ] }, { "cite": "348 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "824" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357976 ], "year": 1986, "pin_cites": [ { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0046-01" ] }, { "cite": "260 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "298 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573829 ], "year": 1979, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0640-01" ] }, { "cite": "457 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "868" } ], "opinion_index": 0 }, { "cite": "340 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790199 ], "year": 1995, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0301-01" ] }, { "cite": "343 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "843-44" }, { "page": "844" } ], "opinion_index": 0 }, { "cite": "316 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694299 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "690" }, { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0666-01" ] }, { "cite": "560 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "783", "parenthetical": "quoting State v. Barts, 316 N.C. 666, 690, 343 S.E.2d 828, 843-44 (1986), overruled on other grounds as stated in State v. Jackson, 340 N.C. 301, 310, 457 S.E.2d 862, 868 (1995)" } ], "opinion_index": 0 }, { "cite": "355 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220055 ], "year": 2002, "pin_cites": [ { "page": "304", "parenthetical": "quoting State v. Barts, 316 N.C. 666, 690, 343 S.E.2d 828, 843-44 (1986), overruled on other grounds as stated in State v. Jackson, 340 N.C. 301, 310, 457 S.E.2d 862, 868 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0294-01" ] }, { "cite": "249 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "428", "parenthetical": "quoting William Blackstone, 4 Commentaries 231" } ], "opinion_index": 0 }, { "cite": "296 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564777 ], "year": 1978, "pin_cites": [ { "page": "103", "parenthetical": "quoting William Blackstone, 4 Commentaries 231" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0101-01" ] }, { "cite": "65 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955332 ], "weight": 2, "year": 1871, "opinion_index": 0, "case_paths": [ "/nc/65/0305-01" ] }, { "cite": "81 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695938 ], "year": 1879, "opinion_index": 0, "case_paths": [ "/nc/81/0560-01" ] }, { "cite": "171 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "93", "parenthetical": "citing State v. Green, 81 N.C. 560 (1879); State v. Jackson, 65 N.C. 305 (1871)" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 740", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550964 ], "year": 1969, "pin_cites": [ { "page": "743", "parenthetical": "citing State v. Green, 81 N.C. 560 (1879); State v. Jackson, 65 N.C. 305 (1871)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0740-01" ] }, { "cite": "380 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "119" } ], "opinion_index": 0 }, { "cite": "324 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485509 ], "year": 1989, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0539-01" ] }, { "cite": "108 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "250 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622412 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/250/0272-01" ] }, { "cite": "287 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "815", "parenthetical": "citing State v. Booker, 250 N.C. 272, 108 S.E.2d 426 (1959), overruled in part on other grounds by State v. Barnes, 324 N.C. 539, 540, 380 S.E.2d 118, 119 (1989)" } ], "opinion_index": 0 }, { "cite": "305 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567315 ], "year": 1982, "pin_cites": [ { "page": "233", "parenthetical": "citing State v. Booker, 250 N.C. 272, 108 S.E.2d 426 (1959), overruled in part on other grounds by State v. Barnes, 324 N.C. 539, 540, 380 S.E.2d 118, 119 (1989)" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0225-01" ] }, { "cite": "268 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564130 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0594-01" ] }, { "cite": "291 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567586 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0110-01" ] }, { "cite": "334 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "782", "parenthetical": "citing State v. Myrick, 306 N.C. 110, 291 S.E.2d 577 (1982)" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520702 ], "year": 1985, "pin_cites": [ { "page": "115", "parenthetical": "citing State v. Myrick, 306 N.C. 110, 291 S.E.2d 577 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0110-01" ] }, { "cite": "186 N.C. App. 656", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8159698 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "658", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 7B-2405 (2005)" }, { "page": "660-61" }, { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0656-01" ] } ], "analysis": { "cardinality": 620, "char_count": 10709, "ocr_confidence": 0.756, "pagerank": { "raw": 7.189145069632814e-08, "percentile": 0.4302086723975027 }, "sha256": "c320ac8ba8aa60800effd100fb61476f519c4d6134cfa431c2433d209bfa8ebf", "simhash": "1:2fed9725757c0ce6", "word_count": 1800 }, "last_updated": "2023-07-14T15:34:12.558956+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ERVIN concur." ], "parties": [ "IN THE MATTER OF: D.K., A Minor Child" ], "opinions": [ { "text": "JACKSON, Judge.\nD.K. (\u201cthe juvenile\u201d) appeals the 8 October 2008 order that adjudicated him delinquent for larceny For the reasons stated herein, we affirm in part and remand for a new trial.\nOn 23 April 2008, the juvenile\u2019s normal teacher was absent, and he was placed into Ms. Carmen Barrantes\u2019s (\u201cBarrantes\u201d) classroom. Near the end of the class period, Barrantes asked the students to put their chairs on their desks and wait for her dismissal. At this time she noticed that the juvenile, then eleven years old, had picked up her fisherman flashlight visor (\u201cvisor\u201d), worth approximately $6.00. When she allowed the students to leave, the juvenile ran out of the room. Barrantes ran after him and attempted to retrieve her visor. The juvenile denied having it. Following discussions with the juvenile, searches of the juvenile\u2019s book bag, and searches of the classroom and nearby hallway, the visor was never found.\nA juvenile petition alleging both misdemeanor larceny and misdemeanor possession of stolen goods was filed on 8 July 2008. The trial court held an adjudication hearing on 12 September 2008. The juvenile made motions to dismiss at the conclusion of the State\u2019s evidence and again at the conclusion of his own evidence. The trial court denied both motions. On 6 October 2008, the juvenile was adjudicated delinquent for larceny, and the petition for possession of stolen goods was dismissed. At the 9 October 2008 dispositional hearing, the trial court sentenced the juvenile as a Level 1 offender, with disposition being continued for three months. The juvenile appeals.\nThe juvenile first argues that the trial court erred by denying his motion to dismiss the petition for larceny based upon insufficient evidence. We disagree.\n\u201cGenerally, a juvenile in an adjudication hearing has \u2018[a]ll rights afforded adult offenders],]\u2019 subject to certain exceptions not relevant to the case sub judice.\u201d In re B.E., 186 N.C. App. 656, 658, 652 S.E.2d 344, 345 (2007) (quoting N.C. Gen. Stat. \u00a7 7B-2405 (2005)). \u201cTherefore, in order to withstand a motion to dismiss the charges contained in a juvenile petition, there must be substantial evidence of each of the material elements of the offense charged.\u201d In re Bass, 77 N.C. App. 110, 115, 334 S.E.2d 779, 782 (1985) (citing State v. Myrick, 306 N.C. 110, 291 S.E.2d 577 (1982)). \u201cThe evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference of fact which may be drawn from the evidence.\u201d Id. (citing State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980)).\nAccording to our Supreme Court, \u201c[t]he essential elements of larceny are that the defendant: (1) took the property of another; (2) carried it away; (3) without the owner\u2019s consent; and (4) with the intent to deprive the owner of his property permanently.\u201d State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982) (citing State v. Booker, 250 N.C. 272, 108 S.E.2d 426 (1959), overruled in part on other grounds by State v. Barnes, 324 N.C. 539, 540, 380 S.E.2d 118, 119 (1989)). Here, the juvenile contends that the State failed to provide substantial evidence as to the second and fourth elements of larceny.\n\u201cThe fact that the property may have been in defendant\u2019s possession and under his control for only an instant is immaterial if his [actions were] such as would constitute a complete severance from the possession of the owner.\u201d State v. Walker, 6 N.C. App. 740, 743, 171 S.E.2d 91, 93 (1969) (citing State v. Green, 81 N.C. 560 (1879); State v. Jackson, 65 N.C. 305 (1871)). \u201c \u2018A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation, or carrying away.\u2019 \u201d State v. Carswell, 296 N.C. 101, 103, 249 S.E.2d 427, 428 (1978) (quoting William Blackstone, 4 Commentaries 231). \u201c[T]he accused must not only move the goods, but he must also have them in his possession, or under his control, even if only for an instant.]\u2019 Id. at 104, 249 S.E.2d at 429 (citing Jackson, 65 N.C. 305).\n\u201c \u2018[T]he intent to permanently deprive an owner of [her] property could be inferred where there was no evidence that the defendant ever intended to return the property, but instead showed a complete lack of concern as to whether the owner ever recovered the property.\u2019 \u201d State v. Mann, 355 N.C. 294, 304, 560 S.E.2d 776, 783 (2002) (quoting State v. Barts, 316 N.C. 666, 690, 343 S.E.2d 828, 843-44 (1986), overruled on other grounds as stated in State v. Jackson, 340 N.C. 301, 310, 457 S.E.2d 862, 868 (1995)). In addition, \u201cby abandoning property, the thief \u2018puts it beyond his power to return the property and shows a total indifference as to whether the owner ever recovers it.\u2019 \u201d Id. (quoting Barts, 316 N.C. at 690, 343 S.E.2d at 844).\nIn the instant case, Barrantes\u2019s testimony places the visor in the juvenile\u2019s possession near the end of the class period. The juvenile does not contest the fact that he did not have permission to hold and look at the visor. Barrantes also stated that the juvenile told her that he had the visor in his hand when he left the classroom but must have dropped it. This evidence allows for a reasonable inference that the visor was in the juvenile\u2019s possession and under his control and that, by dropping it, he put it beyond his power to return the property, showing a total indifference as to whether Barrantes ever recovered it. Therefore, because the State presented substantial evidence as to each element of larceny, the trial court did not err by denying the juvenile\u2019s motion to dismiss.\nThe juvenile draws our attention to the word \u201caccidentally\u201d in a comment by the trial court when it ruled on his motion to dismiss: \u201c[T]he [c]ourt reached a conclusion that [the juvenile] accidentally dropped it while he was in the [classroom] and somebody else picked it up or that he must have accidentally dropped it when he realized that he was, that the teacher was in pursuit of him.\u201d We note, however, that the word \u201caccidentally\u201d refers to the point at which the juvenile lost possession of the visor, not to his mental state at the time he picked up the visor, thereby depriving his teacher of her rightful possession.\nSecond, the juvenile argues that the trial court erred by stating ambiguously in the adjudication order which standard of proof it utilized, in possible violation of North Carolina General Statutes, sections 7B-2409 and 7B-2411. The State agrees with this contention, as do we.\nThis Court has addressed this precise issue in two recent decisions.\nOne of our basic constitutional rights is that the State prove all elements of a criminal charge, including an [sic] juvenile delinquency petition, beyond a reasonable doubt. In re Vinson, 298 N.C. 640, 657, 260 S.E.2d 591, 602 (1979). This constitutional right is codified in the North Carolina Juvenile Code, which provides that \u201c[t]he allegations of a petition alleging the juvenile is delinquent shall be proved beyond a reasonable doubt.\u201d N.C. Gen. Stat. \u00a7 7B-2409 (2005). Further, \u201c[i]f the court finds that the allegations in the petition have been proved as provided in G.S. 7B-2409, the court shall so state.\u201d N.C. Gen. Stat. \u00a7 7B-2411 (2005) (emphasis added). Accordingly, this Court has previously held that the provisions of N.C. Gen. Stat. \u00a7 7B-2411 \u201care mandatory and that it is reversible error for a trial court to fail to state affirmatively that an adjudication of delinquency is based upon proof beyond a reasonable doubt.\u201d In re Walker, 83 N.C. App. 46, 47, 348 S.E.2d 823, 824 (1986).\nIn re B.E., 186 N.C. App. at 660-61, 652 S.E.2d at 347. See also In re C.B., 187 N.C. App. 803, 805-06, 654 S.E.2d 21, 23-24 (2007).\nHere, the trial court concluded at the close of the adjudicatory proceeding, \u201cThat after giving all parties an opportunity to be heard the Court ha [sic], has determined that the uh, juvenile is delinquent for the offense of misdemeanor larceny and misdemeanor possession of stolen property.\u201d Neither this statement nor any surrounding statements indicated what standard of proof the trial court had applied. Subsequently, in its written adjudication order, the trial court found that\nthe following facts have been proven beyond a reasonable doubt-. ... 5. After witnesses were sworn and testimony given, the Court will determine that the State has shown by clear and convincing evidence that the juvenile did commit the act contained in the petition filed July 8, 2008 at 10:21 a.m. in violation of N.C.G.S. 14-72(a), for misdemeanor larceny. The State however did not prove the petition filed July 8, 2008 at 10:21 a.m., in violation of N.C.G.S. 14-71.1, for misdemeanor possession of stolen goods.\n(Emphasis added). Because the trial court applied two conflicting burdens of proof, we cannot determine which one it relied upon in making its d\u00e9termination. Ordinarily, \u201c[b]ecause the trial court has already made its determinations as to the credibility of the witnesses and has weighed the evidence, we [would] not require a new hearing.\u201d In re B.E., 186 N.C. App. at 662, 652 S.E.2d at 348. However, the trial judge in this case recently has been appointed to the superior court bench by the governor. As she already has been sworn in to that office, she is unavailable to make the required findings as to standard of proof upon remand. Accordingly, we must order a new trial.\nFor these reasons, we affirm the trial court\u2019s denial of the juvenile\u2019s motion to dismiss the petition for larceny based upon insufficient evidence. Because the option of remand is unavailable, we also order a new trial.\nNew trial.\nChief Judge MARTIN and Judge ERVIN concur.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Teresa L. Townsend, for the State.", "Geeta Kapur, for respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: D.K., A Minor Child\nNo. COA09-495\n(Filed 3 November 2009)\n1. Larceny\u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying a juvenile\u2019s motion to dismiss a petition for larceny for insufficient evidence because the State presented substantial evidence as to each element of larceny.\n2. Juveniles\u2014 delinquency \u2014 adjudication order \u2014 ambiguous statement of standard of proof \u2014 new trial\nA new trial was ordered where the trial court applied conflicting burdens of proof and the actual standard relied upon could not be determined. The trial judge was unavailable to make the required findings on remand as she has already been sworn in as a superior court judge.\nAppeal by juvenile-respondent from orders entered 8 October 2008 and 16 October 2008 by Judge Patrice A. Hinnant in Guilford County District Court. Heard in the Court of Appeals 12 October 2009.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Teresa L. Townsend, for the State.\nGeeta Kapur, for respondent-appellant." }, "file_name": "0785-01", "first_page_order": 811, "last_page_order": 815 }