in the Court of Appeals 13 December 2017.
by juvenile from adjudication and disposition entered 27
February 2017 by Judge Susan M. Dotson-Smith in District
Court, Buncombe County No. 16 JB 315.
Attorney General Joshua H. Stein, by Assistant Attorney
General Janelle E. Varley, for the State.
& Carter PLLC, by Michelle F. Lynch, for
appeals adjudication and disposition orders for disorderly
conduct and resisting a public officer. Because there was
insufficient evidence to support the adjudication for either
offense, we vacate the juvenile court's adjudication and
November 2016, a JUVENILE PETITION (DELINQUENT) was filed
alleging juvenile had engaged in disorderly conduct and
resisting a public officer. The State called two witnesses to
testify. The primary witness was the school resource officer,
Mickey Ray. Officer Ray testified he saw the juvenile throw a
chair in the cafeteria. No one was hit with the chair and the
officer testified "I didn't see anybody, you know,
around that could have been hit by the chair." After
throwing the chair, juvenile ran out of the cafeteria; the
officer followed and without calling out to juvenile, grabbed
him from behind. Juvenile initially cursed when Officer Ray
caught him and then told him he was playing with his brother.
The district court adjudicated the juvenile as delinquent for
disorderly conduct and resisting a public officer. Juvenile
Petition for Disorderly Conduct
first contends that his petition for disorderly conduct under
North Carolina General Statute § 14-288.4 was defective
because it is not clear which subsection of this statute he
violated. The State contends it is "clear" it was
proceeding under North Carolina General Statute §
14-288.4(a)(1): "Because the charging language so
closely tracks the statutory language of §
14-288.4(a)(1), the petition was sufficiently clear and
provided the juvenile with adequate notice of the charged
offense and the conduct which was the subject of the
allegation." We need not address juvenile's argument
regarding the petition because he will prevail on his second
argument regarding his motion to dismiss. But we also note
that based upon the State's argument that only North
Carolina General Statute § 14-288.4(a)(1) applies, we
will analyze the motion to dismiss for disorderly conduct
under the elements of that subsection only.
Motion to Dismiss
argues the trial court erred in denying his motion to dismiss
both of the charges against him due to the insufficiency of
the evidence. "Where the juvenile moves to dismiss,
the trial court must determine whether there is substantial
evidence (1) of each essential element of the offense
charged, and (2) of juvenile's being the perpetrator of
such offense." In re Heil, 145 N.C.App. 24, 28,
550 S.E.2d 815, 819 (2001) (citation, quotation marks,
ellipses, and brackets omitted).
In reviewing a challenge to the sufficiency of evidence, it
is not our duty to weigh the evidence, but to determine
whether there was substantial evidence to support the
adjudication, viewing the evidence in the light most
favorable to the State, and giving it the benefit of all
Id. at 29, 550 S.E.2d at 819.
contends the trial court erred in denying his motion to
dismiss due to the insufficiency of the evidence. North
Carolina General Statute § 14-288.4(a)(1) provides that
"[d]isorderly conduct is a public disturbance
intentionally caused by any person who . . . [e]ngages in
fighting or other violent conduct or in conduct creating the
threat of imminent fighting or other violence." N.C.
Gen. Stat. § 14-288.4(a)(1) (2015). The State's
argument focuses on the general definition of a "public
disturbance" in North Carolina General Statute §
(8) Public disturbance.-- Any annoying, disturbing, or
alarming act or condition exceeding the bounds of social
toleration normal for the time and place in question which
occurs in a public place or which occurs in, affects persons
in, or is likely to affect persons in a place to which the
public or a substantial group has access. The places covered
by this definition shall include, but not be limited to,
highways, transport facilities, schools, prisons, apartment
houses, places of business or amusement, or any neighborhood.
N.C. Gen. Stat. § 14-288.1(8) (2015).
State does not cite any cases interpreting or discussing
North Carolina General Statute § 14-288.1(8) or
-288.4(a)(1). Not surprisingly, the issue in several of the
cases addressing the specific subsections of North Carolina
General Statute § 14-288.4 is whether the statute is
unconstitutionally vague as many things could be considered
"annoying, disturbing, or alarming" by one person
but not by another. See, e.g., State v.
Orange, 22 N.C.App. 220, 223, 206 S.E.2d 377, 379 (1974)
("Defendant does contend that G.S. 14-288.4(a)(2) is
unconstitutionally vague under the First Amendment.");
State v. Clark, 22 N.C.App. 81, 87, 206 S.E.2d 252,
256 (1974) ("Defendant also argues that section (a)(2)
of G.S. 14-288.4, as amended in 1971, is unconstitutionally
vague and overbroad."). But in State v.
Strickland, 27 N.C.App. 40, 42-43, 217 S.E.2d 758,
759-60 (1975), this Court determined that although North
Carolina General Statute § 14-288.1(8) -- the definition
of "public disturbance" -- may be
unconstitutionally vague standing alone, it must be read in
conjunction with the specific acts which constitute a
"public disturbance" under North Carolina General
Statute § 14-288.4, and when considered together, the
statute is not unconstitutionally vague:
The statute, G.S. 14-288.4(a), initially defines disorderly
conduct in general terms as a public disturbance and then
sets forth in subsequent subsections specific examples of
conduct which is prohibited as disorderly conduct. It is a
rule of construction, that when words of general import are
used, and immediately following and relating to the same
subject words of a particular or restricted import are found,
the latter shall operate to limit and restrict the former.
In order to ascertain what actions are violative of the
statute as constituting disorderly conduct, one must look,
not to ...