{ "id": 4221822, "name": "STATE OF NORTH CAROLINA v. WESLEY DELAND STEVENS", "name_abbreviation": "State v. Stevens", "decision_date": "2013-07-16", "docket_number": "No. COA12-1394", "first_page": "352", "last_page": "359", "citations": [ { "type": "official", "cite": "228 N.C. App. 352" } ], "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": "330 N.C. 808", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513076 ], "opinion_index": -1, "case_paths": [ "/nc/330/0808-01" ] }, { "cite": "641 S.E.2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637814 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "17" }, { "parenthetical": "alterations in original" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0013-01" ] }, { "cite": "650 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639310 ], "year": 2007, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0029-01" ] }, { "cite": "412 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "891" } ], "opinion_index": 0 }, { "cite": "559 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "21" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 343", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365860 ], "year": 2002, "pin_cites": [ { "page": "348-49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0343-01" ] }, { "cite": "600 S.E.2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "895" }, { "page": "896" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 202", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411017 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "206" }, { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0202-01" ] }, { "cite": "181 N.C. App. 698", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375986 ], "year": 2007, "pin_cites": [ { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0698-01" ] }, { "cite": "291 S.E.2d 916", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "57 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524814 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/57/0453-01" ] }, { "cite": "728 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2012, "pin_cites": [ { "page": "347", "parenthetical": "internal quotation marks omitted" }, { "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "366 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4346822 ], "year": 2012, "pin_cites": [ { "page": "93", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/366/0090-01" ] }, { "cite": "186 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154614 ], "year": 2007, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0057-01" ] }, { "cite": "714 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "207" } ], "opinion_index": 0 }, { "cite": "733 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "98" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-316.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2011, "opinion_index": 0 }, { "cite": "675 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "409" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166258 ], "year": 2009, "pin_cites": [ { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0650-01" ] }, { "cite": "330 N.C. 808", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513076 ], "pin_cites": [ { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0808-01" ] } ], "analysis": { "cardinality": 676, "char_count": 15921, "ocr_confidence": 0.735, "pagerank": { "raw": 6.516203870376015e-08, "percentile": 0.40046774927804674 }, "sha256": "4cde8a7325646993ccd15edfb7062f99765f6819a7a91ca90014e14263bcce89", "simhash": "1:b3bff50ed5a82f06", "word_count": 2622 }, "last_updated": "2023-07-14T22:18:27.138557+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and HUNTER, JR. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WESLEY DELAND STEVENS" ], "opinions": [ { "text": "McGEE, Judge.\nWesley Deland Stevens (Defendant) was convicted of assault on a child under twelve years of age and contributing to the delinquency and neglect of a minor. Defendant appeals.\nI. Indictment for Contributing to the Delinquency and Neglect of a Minor\nDefendant argues the indictment for contributing to the delinquency and neglect of a minor was fatally defective. We disagree.\n\u201cOn appeal, we review the sufficiency of an indictment de novo.\u201d State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009). A criminal pleading must contain a \u201cplain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant\u2019s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.\u201d N.C. Gen. Stat. \u00a7 15A-924(a)(5) (2011).\nDefendant was charged with contributing to the delinquency and neglect of a minor, defined as follows:\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, orto commit an act whereby the juvenile could be adjudicated delinquent, undisciplined, abused, or neglected as defined by G.S. 7B-101 and G.S. 7B-1501 shall be guilty of a Class 1 misdemeanor.\nN.C. Gen. Stat. \u00a7 14-316.1 (2011).\nThe indictment read:\n[O]n or about the 16th day of June 2011, in the county named above, [Defendant] named above knowingly and willfully caused or encouraged or aided D.F. (dob 12/02/2002), a juvenile within the jurisdiction of the Court, to be in a place or condition whereby D.F. could be adjudicated[] [dependent], neglected[,] or undisciplined as defined in N.C.G.S. Chapter 7B. This act was done in violation of N.C. Gen. Stat. \u00a7 14-316.1.\nDefendant contends the indictment \u201ccontains no factual statements, other than the date of birth of the juvenile, to apprise [Defendant] of the conduct which was the subject of the accusation.\u201d An \u201cindictment for a statutory offense is sufficient, if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words.\u201d State v. Barnett,_N.C. App.__,_, 733 S.E.2d 95, 98 (2012). The indictment lists the date upon which Defendant is alleged to have caused, encouraged, or aided the juvenile such that the juvenile could be adjudicated neglected, gives the juvenile\u2019s initials and date of birth, and tracks the statutory language of the offense. These factual statements do not render the indictment fatally defective.\nDefendant also contends \u201cthe caption states the alleged crime as \u2018contributing to the delinquency of a minor[,\u2019] when in fact the State proceeded on contributing to the neglect of a juvenile [.]\u201d The caption is not part of an indictment and \u201ccan neither enlarge nor diminish the offense charged in the body of the indictment.\u201d State v. Billinger,_N.C. App. _,_, 714 S.E.2d 201, 207 (2011). The caption referring to delinquency cannot diminish the offense charged in the body of an indictment referring to neglect. The caption of the indictment in the present case does not render the indictment fatally defective.\nDefendant further contends the indictment should have alleged \u201ca factual statement that [Defendant] had a parental or caretaker relationship or that he failed to obtain necessary medical treatment for [the juvenile] for an eye injury.\u201d Defendant cites no authority supporting his contention that the indictment \u201cneeded to have alleged more[.]\u201d N.C.G.S. \u00a7 14-316.1 does not require a parental or caretaker relationship between a defendant and a juvenile.\n\u201cAny person\u201d who causes a juvenile to be in a place or condition where the juvenile could be adjudicated neglected is guilty of a Class 1 misdemeanor. N.C.G.S. \u00a7 14-316.1. A neglected juvenile is a \u201cjuvenile who does not receive proper care, supervision, or discipline from the juvenile\u2019s parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care[.]\u201d N.C. Gen. Stat. \u00a7 7B-101(15) (2011). Defendant need only be a person who causes a juvenile to be in a place or condition where the juvenile does not receive proper care from a caretaker or is not provided necessary medical care. The indictment in the present case is not fatally defective.\nTT. Sufficiency of the Evidence of Contributing to the Delinquency and Neglect of a Minor\nDefendant argues the trial court erred in denying Defendant\u2019s motion to dismiss for insufficient evidence of contributing to the delinquency and neglect of a minor. We disagree.\nWe review the trial court\u2019s denial of a motion to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). The \u201ctrial court must determine whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.\u201d State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 347 (2012) (internal quotation marks omitted). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Id. The \u201ctrial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State\u2019s favor.\u201d Id. \u201cAll evidence, competent or incompetent, must be considered. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered.\u201d Id. (internal citations and quotation marks omitted).\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, undisciplined, abused, or neglected as defined by G.S. 7B-101 and G.S. 7B-1501 shall be guilty of a Class 1 misdemeanor.\nN.C.G.S. \u00a7 14-316.1. We note that this offense requires two different standards of proof. First, the State must show, beyond a reasonable doubt, that Defendant knowingly or willfully caused, encouraged, or aided the juvenile to be in a place or condition whereby the juvenile could be adjudicated neglected. Second, adjudication of neglect requires the State to show, by clear and convincing evidence, that a juvenile is neglected. See N.C. Gen. Stat. \u00a7 7B-805 (2011).\nDefendant argues that the State presented no evidence that Defendant was a \u201cparent, guardian, custodian, or caretaker].]\u201d As previously discussed, Defendant need not be a parent or caretaker in order to violate N.C.G.S. \u00a7 14-316.1. Defendant need only be a person who causes a juvenile to be in a place or condition where the juvenile does not receive proper care from a caretaker or is not provided necessary medical care.\nDefendant further contends the State presented insufficient evidence the juvenile was neglected, citing In re Huber, 57 N.C. App. 453, 291 S.E.2d 916 (1982), to argue that the juvenile\u2019s eye injury did not fall below a normative standard of care. Trial testimony shows the following. The juvenile was eight years old at the time of the offense. While the juvenile was riding his bicycle in his neighborhood, Defendant was riding a bicycle as well. Defendant \u201cgot in front of [the juvenile],\u201d and then roped the juvenile\u2019s handlebars to Defendant\u2019s bicycle seat. Defendant did not answer the juvenile\u2019s question about the use of the rope.\nThe juvenile found it difficult to ride with the bicycles tied together because Defendant was \u201cgoing a little bit too fast for [the juvenile\u2019s] legs to go.\u201d The juvenile tried to stop Defendant by pulling on the bicycle brakes, but gave up after his hands started to hurt. Eventually, the juvenile was injured.\n[Juvenile]. [Defendant] got up and took off his belt because he was talking to someone else who got beat up and [Defendant] swang his belt and it hit a window and then it hit my eye....\n[State]. And when the belt hit the window, what happened?\nA. The metal piece came off and hit my eye....\nQ. What about when your eye got hit, what did [Defendant] say?\nA. Nothing.\nQ. Did you tell him that you had gotten hit in the eye?\nA. Yes.\nQ. And he didn\u2019t say anything?\nA No.\nDefendant and the juvenile bicycled to a store. On the way, Defendant began drinking from a \u201cgrey can with white words.\u201d Defendant and the juvenile stopped \u201cnear some bushes that were in the middle of the parking lot.\u201d The juvenile asked to go home, but Defendant \u201cdidn\u2019t say anything.\u201d While Defendant continued to drink, the juvenile fell asleep. When he woke up, Defendant was gone.\nConsidering the evidence in the light most favorable to the State, this constitutes sufficient evidence that Defendant put the juvenile in a place or condition whereby the juvenile could be adjudicated neglected. This Court has held that a mother\u2019s \u201cdelay in seeking necessary medical care\u201d for a child supported the conclusion of law that the child was neglected. In re C.P., L.P. & N.P., 181 N.C. App. 698, 704, 641 S.E.2d 13, 17 (2007). The \u201cdeterminative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent; the fact that the parent loves or is concerned about [the] child will not necessarily prevent the court from making a determination that the child is neglected.\u201d Id. (alterations in original).\nIn the present case, Defendant took the juvenile away from the area near the juvenile\u2019s home. When the juvenile became injured, Defendant apparently ignored him. Defendant then abandoned the sleeping juvenile in a parking lot. Defendant put the juvenile in a place or condition where the juvenile could be adjudicated neglected because he could not receive proper supervision from his parent. The trial court did not err in denying Defendant\u2019s motion to dismiss the charge of contributing to the neglect of a juvenile.\nIII. Assault on a Child under Twelve Years of Age\nDefendant next argues the trial court erred in permitting the jury to convict Defendant on a criminal negligence theory of intent, which was not alleged in the indictment. We agree.\n\u201cIt is a well-established rule in this jurisdiction that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.\u201d State v. Hines, 166 N.C. App. 202, 206, 600 S.E.2d 891, 895 (2004).\nIn the present case, the indictment for assault on a child under twelve years of age read as follows:\n[Defendant named above unlawfully and willfully did assault D.F., a child under the age of 12, to wit: hitting him in the face by swinging about his belt. This was done in violation of N.C.G.S. \u00a7 14-33(c)(3).\nInitially, the trial court did not instruct the jury on criminal negligence. After the jury asked for clarification on the \u201clegal definition of intent[,]\u201d the trial court reinstructed the jury, as follows:\nIntent is a mental attitude seldom provable by direct evidence. It must ordinarily be proven by circumstances from which it may be inferred. You arrive at the intent of a person by such just and reasonable deductions from the circumstances proven as a reasonably prudent person would ordinarily draw therefrom.\nThat definition of intent applies as well to the assault on a child, and I will instruct you in addition that the state must prove - with respect to assault on a child under 12, the state most prove that intent - that the defendant intentionally assaulted the victim by hitting him with a belt and that that intent must either be, number one, actual intent or intent or it can be inferred from a showing of culpable negligence.\nCulpable negligence is conduct of a willful, gross and flagrant character evincing reckless disregard for the safety of others.\nThe instruction permitted the jury to convict Defendant on a criminal negligence theory of assault, a theory not alleged in the indictment. See Hines, 166 N.C. App. at 207, 600 S.E.2d at 896. The trial court erred in denying Defendant\u2019s motion to dismiss. Because of this holding, we need not reach Defendant\u2019s argument regarding the sufficiency of the evidence of assault on a child under twelve years of age.\nIV. Jury Instruction\nDefendant argues that the trial court committed plain error in failing to sua sponte instruct the jury that an expert witness\u2019s testimony could be considered only for corroborative purposes. We disagree.\nDefendant did not request a limiting instruction at the time the evidence was admitted. We review only for plain error. State v. Demos, 148 N.C. App. 343, 348-49, 559 S.E.2d 17, 21 (2002). Defendant cites a rule that evidence of post-traumatic stress syndrome may not \u201cbe admitted substantively for the sole purpose of proving that a rape or sexual abuse has in fact occurred.\u201d State v. Hall, 330 N.C. 808, 822, 412 S.E.2d 883, 891 (1992). However, this rule does not apply here. Hall specifically applies to rape or sexual abuse cases. The present case involves no rape or sexual abuse. Defendant cites no authority that the rule applies to a charge defined in N.C.G.S. \u00a7 14-316.1, and our research reveals no such case. The trial court did not commit plain error by failing to sua sponte instruct the jury.\nIn conclusion, we must reverse the conviction for assault of a child under twelve years of age due to error in the trial court\u2019s jury instructions. Defendant\u2019s remaining arguments reveal no error in the trial court.\nNo error in part; reversed in part.\nJudges STEPHENS and HUNTER, JR. concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State.", "Gerding Blass, PLLC, by Danielle Blass, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WESLEY DELAND STEVENS\nNo. COA12-1394\nFiled 16 July 2013\n1. Indictment and Information \u2014 contributing to the delinquency and neglect of a minor \u2014 not fatally defective\nAn indictment for contributing to the delinquency and neglect of a minor was not fatally defective where neither certain factual statements in the body of the indictment nor the caption of the indictment rendered the indictment fatally defective. Furthermore, the offense charged did not require a parental or caretaker relationship between a defendant and a juvenile.\n2. Child Abuse, Dependency, and Neglect \u2014 contributing to the delinquency and neglect of a minor \u2014 sufficient evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of contributing to the delinquency and neglect of a minor. There was sufficient evidence of each element of the charge.\n3. Indictment and Information \u2014 contributing to the delinquency and neglect of a minor \u2014 instruction on intent \u2014 theory not supported by indictment\nThe trial court erred in a contributing to the delinquency and neglect of a minor case by permitting the jury to convict defendant on a theory which was not supported by the indictment. The trial court\u2019s reinstruction on the legal definition of intent permitted the jury to convict defendant on a criminal negligence theory of assault, a theory not alleged in the indictment.\n4. Child Abuse, Dependency, and Neglect \u2014 contributing to the delinquency and neglect of a minor \u2014 expert testimony\nThe trial court did not commit plain error in a contributing to the delinquency and neglect of a minor case by failing to sua sponte instruct the jury that an expert witness\u2019s testimony could be considered only for corroborative purposes. The rule in State v. Hall, 330 N.C. 808, that evidence of post-traumatic stress syndrome may not be admitted substantively for the sole purpose of proving that a rape or sexual abuse has in fact occurred is inapplicable to a charge defined in N.C.G.S. \u00a7 14-316.1.\nAppeal by Defendant from judgments entered 1 March 2012 by Judge Paul G. Gessner in Superior Court, Wake County. Heard in the Court of Appeals 7 May 2013.\nAttorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State.\nGerding Blass, PLLC, by Danielle Blass, for Defendant." }, "file_name": "0352-01", "first_page_order": 362, "last_page_order": 369 }