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In re T.T.E.

Court of Appeals of North Carolina

July 17, 2018

IN THE MATTER OF: T.T.E.

          Heard in the Court of Appeals 13 December 2017.

          Appeal 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.

          Morgan & Carter PLLC, by Michelle F. Lynch, for juvenile-appellant.

          STROUD, JUDGE.

         Juvenile 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 disposition orders.

         I. Background

         On 8 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 appeals.

         II. Petition for Disorderly Conduct

         Juvenile 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.

         III. Motion to Dismiss

         Juvenile argues the trial court erred in denying his motion to dismiss both of the charges against him due to the insufficiency of the evidence.[1] "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 reasonable inferences.

Id. at 29, 550 S.E.2d at 819.

         A. Disorderly Conduct

         Juvenile 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 § 14-288.1:

(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).

         The 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 ...

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