The opinion of the court was delivered by: Timmons-goodson, Judge.
Appeal by defendant from judgment entered 31 October 1996 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 17 March 1998.
Defendant Joy Michelle Brantley was indicted on the charges of felonious larceny and felonious possession of stolen goods, in violation of sections 14-72(a) and 14-71.1 of the North Carolina General Statutes, respectively. This matter came on for trial before Judge Quentin T. Sumner and a duly empaneled jury during the 28 October 1996 criminal session of Nash County Superior Court.
At trial, the facts tended to show the following: In 1995, defendant was seventeen years of age and lived with her grandparents, Arnold and Linda Brantley (collectively referred to as "the Brantleys") in Bailey, North Carolina. On 3 August 1995, Mrs. Brantley discovered that the money hidden in various places throughout the residence was missing.
Over a period of approximately nine years, the Brantleys had saved close to $14,800.00, all of which was hidden in various places throughout the home. The Brantleys kept records in a "little memo" of how much money they had saved and the locations of the money in the house. The "little memo" was kept in a cabinet along with some money.
The Brantleys had last checked or counted the money in late May or early June 1995, and had found all of the money present. The Brantleys had not hidden or removed any of their money between the May/June 1995 count and 3 August 1995, when Mrs. Brantley discovered the money missing. Moreover, the Brantleys had not counted their money in the interim. The Brantleys had never told defendant about the stashed money, and did not believe that she knew about its existence.
After discovering that the money was missing, Mrs. Brantley called the Nash County Sheriff's Department. Deputy Sheriff Russell Thompson responded to the call. When the deputy arrived, defendant was not at home, but was contacted and returned home. Defendant and her mother, Ms. Glenda Saunders were interviewed by Deputy Thompson, because they both had access to the Brantleys' residence. At this time, no one was taken into custody. Defendant denied any knowledge of the missing money.
On the following day, 4 August 1995, when confronted by her grandmother in the presence of her mother and father, defendant admitted that she and her boyfriend, Scott Carpenter, had taken the money. Defendant told them that she and her boyfriend had used the money to buy crack cocaine, jewelry, and other items. Defendant and Carpenter had attended the same high school and had dated during the school year. Carpenter had frequently visited the Brantley residence, and had been at the residence on occasion between June and August 1995.
Subsequently, Mrs. Brantley contacted Deputy Thompson and told him about defendant's admission. When the deputy arrived at the Brantleys' home, he was again informed that defendant and Carpenter had taken the money. Defendant was taken into custody and transported to the Nash County Sheriff's Department in Deputy Thompson's patrol car. While at the Sheriff's Department, defendant made oral and written inculpatory statements. A search of defendant's person yielded coins that Mrs. Brantley identified as a portion of the missing money.
After hearing all of the evidence, the trial court instructed the jury on felonious larceny and felonious possession of stolen goods. The jury returned a verdict finding defendant not guilty of felonious larceny, but guilty of felonious possession of stolen goods. Judge Sumner entered judgment upon the jury verdict, sentencing defendant to a minimum term of imprisonment of six months and a maximum term of imprisonment of eight months. This sentence was suspended and defendant was placed on supervised probation for a period of thirty-six months. Defendant appeals.
On appeal, defendant brings forth two assignments by which she argues that the trial court committed error in denying her motion to suppress and failing to charge the jury on the lesser included offense of misdemeanor possession of stolen goods. For the reasons discussed herein, we agree that the trial court erred in failing to charge the jury on the lesser included offense of misdemeanor possession of stolen goods, and accordingly, vacate the judgment of the trial court and remand this matter for a new trial.
We begin our analysis of the merits of defendant's appeal, with the argument that the trial court committed reversible error in failing to deny her motion to suppress certain inculpatory statements. Defendant contends that she did not knowingly, voluntarily and understandingly waive her Miranda rights and her rights under section 7A-595(a) of the General Statutes, when she made the inculpatory statements to Deputy Thompson. This argument is unpersuasive.
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, reh'g denied, 385 U.S. 890, 17 L. Ed. 2d 121 (1966), requires that a suspect who has been taken into the custody of law enforcement, must be informed prior to questioning of her right to be silent, to have an attorney present during questioning, and that any statement made may be used against her. In addition, section 7A-595(a) gives juveniles the above-mentioned Miranda rights as well as the right to have a parent, guardian or custodian present during questioning. See N.C. Gen. Stat. § 7A-595(a) (1995); State v. Fincher, 309 N.C. 1, 9-10, 305 S.E.2d 685, 691 (1983). The rights afforded under section 7A-595 apply only to those persons defined to be a "juvenile" as provided in section 7A-517(20). Fincher, 309 N.C. at 10, 305 S.E.2d at 692. Section 7A-517(20) defines a juvenile as a person under the age of eighteen who is neither married, emancipated, or in the military. N.C. Gen. Stat. § 7A-517 (20) (1995). A trial court's findings of fact on a motion to suppress are binding on this Court if those findings are supported by the evidence. State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), cert. denied, 455 U.S. 1038, 72 L. Ed. 2d 155 (1982).
In the instant case, the facts tend to show that defendant first admitted to her grandmother, mother, and father that she and her boyfriend had stolen the missing money; that defendant's grandmother then called Deputy Thompson and informed him of defendant's confession; that Deputy Thompson subsequently traveled to the Brantleys' residence where he questioned defendant in the presence of her grandmother, mother, and father; that after defendant was taken into custody, Deputy Thompson informed defendant that she could have a parent or guardian present, but defendant declined to do so; that, subsequently, while in custody, defendant made additional oral and written inculpatory statements to Deputy Thompson; and that defendant signed the waiver of rights form, indicating that she had knowingly, voluntarily, and understandingly waived her Miranda rights.
The trial court made specific findings of fact that defendant had knowingly, voluntarily and understandingly waived her rights under Miranda and section 7A-595(a). As these findings are supported by the evidence in the record, they will not be disturbed by ...