Juvenile Justice Case Compendium

Facts: Brian, age 15, was adjudicated undisciplined in April of 2021. He was given a contempt warning in open court following adjudication. A second order issued by the court on the date of the adjudication included that Brian was to attend school daily; have no unexcused absences, tardies, or suspensions; and complete all assigned schoolwork. This order included that Brian verbally acknowledged that he understood that violation of the conditions could result in being held in contempt. The related dispositional order, entered in June of 2021, placed Brian on protective supervision and required him to attend school regularly, among other things. It also provided that the contempt warning provided after adjudication remained in effect. A delinquency petition was filed in August of 2021 alleging that Brian had three unexcused absences and therefore was in contempt of the court order. Brian filed a motion to dismiss, alleging that G.S. 7B-2505, read together with G.S. 7B-2503, did not allow for the trial court to pursue a delinquency action following an undisciplined adjudication and that pursuit of a delinquency adjudication was therefore a due process violation. The trial court denied the motion, Brian admitted to indirect contempt, and he was placed on probation for six months.

Opinion: G.S. 7B-1501(7)(a) states that a juvenile [between the ages of 10 and 16] is delinquent if they commit indirect contempt, as defined in G.S. 5A-31. Under G.S. 5A-31, a juvenile commits indirect contempt when they engage in willful disobedience of, resistance to, or interference with a lawful court order and when that occurs outside the presence of a court. Indirect contempt by a juvenile can only be adjudged and sanctioned through a delinquency proceeding, as provided in Subchapter II of Chapter 7B of the General Statutes. Brian committed indirect contempt when he violated his undisciplined disposition by failing to attend school regularly. He was put on notice several times that such a violation would result in being held in contempt. The undisciplined dispositional alternatives in the Juvenile Code ceased to control the dispositional alternatives once Brian was held in indirect contempt. It was proper for the trial court to find Brian delinquent as a result of the contempt and in light of the trial court’s multiple contempt warnings. The trial court did not err in dismissing the motion to dismiss.

Facts: A petition was filed alleging that the juvenile committed extortion by obtaining a digital image of a victim, without her knowledge or consent, in which she was in only her bra and underwear. The petition also alleged that the juvenile used the image to obtain food from the school cafeteria while threatening to expose the image if the victim refused to buy the food or do what the juvenile asked of her. The petition did not name the victim. The juvenile was adjudicated delinquent and the court entered a Level 1 disposition. On appeal the juvenile asserted that 1) the court lacked subject matter jurisdiction because the petition was fatally defective in that it failed to name the victim, 2) the juvenile’s motion to dismiss should have been granted because the crime of extortion requires threat of unlawful physical violence and the juvenile did not make such a threat, 3) there was a fatal variance between the threat alleged in the petition and the proof at the adjudication hearing, 4) the written findings in the adjudication order were insufficient, and 5) the disposition order was insufficient in its failure to contain findings of fact to demonstrate that the court considered all the required factors in G.S. 7B-2501(c).

Opinion:

No Fatal Defect in the Petition

Juvenile petitions are generally held to the same standards as criminal indictments in that they must aver every element of the offense with sufficient specificity to clearly apprises the juvenile of the conduct being charged. Like an indictment, a fatally deficient petition fails to evoke the jurisdiction of the court. Central to the offense of extortion is the wrongfulness of the method by which the juvenile seeks to obtain something of value. Slip op. at ¶ 23. A charging instrument charging extortion need only aver the material elements of the offense, which are 1) that a wrongful demand was made with 2) the intent to demand something of value. Slip op. at ¶ 24. The petition in this case sufficiently alleged each of these elements. It was not necessary to specifically name the victim.

Threat Element of Extortion Does not Require Threat of Unlawful Physical Violence

Assuming, without holding, that G.S. 14-118.4 is an anti-threat statute, the court holds that First Amendment jurisprudence does not limit the application of this statute to threats of unlawful physical violence. Slip op. at ¶ 31. The definition of a true threat, as provided in State v. Taylor, 379 N.C. 589, 2021-NCSC-164, does not require that a threat includes unlawful physical violence. There is no constitutional rule that threats are protected speech unless they threaten unlawful physical violence. Slip op. at ¶ 34. The State was not required to prove that the juvenile threatened unlawful physical violence.

No Fatal Variance Between Petition and Evidence

The essential element of extortion is that the juvenile used a wrongful threat to obtain something of value. The precise identification of what that thing of value was is not material, as long as the State proves that the juvenile obtained or attempted to obtain something of value. Slip op. at ¶ 40. The specific language in the petition alleging that the juvenile sought to obtain food from the cafeteria was unnecessarily specific and therefore surplusage. The fact that the evidence showed that the juvenile asked the victim to do his homework and the petition alleged that he asked her to obtain food from the cafeteria did not create a fatal variance.

Insufficient Written Findings in the Adjudication Order

G.S. 7B-2411 requires that, at a minimum, the court state in a written adjudication order that the allegations in the petition have been proved beyond a reasonable doubt. Language on the pre-printed form used, stating that “The following facts have been proven beyond a reasonable doubt: . . ,”  followed by a finding that states, “[a]t the hearing before the judge, the juvenile was found to be responsible for extortion in violation of 14-118.4,”is insufficient to satisfy this statutory requirement. Only a conclusory statement that the juvenile was responsible for the offense is insufficient. The trial court must affirmatively state the burden of proof in its written findings without regard to the pre-printed language on the form. The case is remanded for the court to make the necessary written findings in the adjudication order.

Insufficient Written Findings in the Dispositional Order

The dispositional order incorporated the predisposition report and the juvenile’s risk and needs assessment by reference. There were no written findings related to the factors the court is required to consider under G.S. 7B-2501(c) when ordering a disposition. The order is therefore insufficient. Because the adjudication order is vacated, this disposition order is also vacated. However, the insufficiency of the disposition order provides an independent ground for vacating the disposition order. On remand, the trial court may hold a new dispositional hearing to hear additional evidence needed to appropriately consider the factors required by G.S. 7B-2501(c).

Facts: Jake appeared in Wake County District Court and admitted to breaking or entering a motor vehicle. The transcript of admission provided that the most serious disposition was a Level 2 disposition. The court also informed Jake that the most serious disposition he could face was a Level 2 disposition. The case was transferred to Cumberland County District Court for disposition. The Cumberland County District Court ordered a Level 3 disposition.

Opinion:  The acceptance of a juvenile admission must be knowing and voluntary, as it is tantamount to acceptance of a guilty plea. Pursuant to G.S. 7B-2407(a)(6), the court must inform the juvenile of the most restrictive disposition on the charge before accepting the admission. When the court plans to impose a disposition level higher than the level contained in the transcript of admission, the juvenile must be given the chance to withdraw the plea and be granted a continuance. In re W.H., 166 N.C. App. 643 (2004). Because the court entered a disposition level higher than the disposition level contained in the transcript of admission and Jake was not given the chance to withdraw his admission, his admission was not knowing and voluntary. The transcript of admission is vacated and the adjudication and disposition orders are reversed.

Facts: K.N.H. was on Level 2 probation and, after making an admission to possession of a handgun and entering an Alfrod plea for attempted common law robbery, the court issued a supplemental order for conditions of probation which included that K.N.H. “submit to [e]lectronic [m]onitoring for 90 days and comply with all conditions set forth by the [c]ourt [c]ounselor.” The juvenile court counselor told K.N.H. and his parent that K.N.H. would have to be with his parent at any time he was allowed to have time outside his home while on electronic monitoring. This condition was never provided to K.N.H. in writing. The court subsequently found that K.N.H. willfully violated his probation conditions by failing to remain with a parent the entire time he was on approved time out of his house. The court then committed K.N.H. to the YDC for an indefinite period of time, without stating the maximum potential term of commitment.

 Opinion:

Written condition of probation: The court complied with the statutory requirements for imposing electronic monitoring (G.S. 7B-2510(b)(4)) by specifically ordering the juvenile to be placed on electronic monitoring. The statute does not require the inclusion of the precise terms and conditions or rules of electronic monitoring imposed by the court counselor in the dispositional order. Criminal law that requires written statements of probation conditions does not apply in delinquency cases because it is not included in the Juvenile Code. Requiring the court to define the specific terms and conditions of each dispositional alternative or condition of probation when not mandated by statute conflicts with the goals of the Juvenile Code to provide a broad range of alternatives and would interfere with the court’s power to delegate certain tasks to third parties involved in the juvenile’s dispositional plan. The court “properly ordered electronic monitoring and appropriately delegated the task of supervision of the electronic monitoring to K.N.H.’s court counselor.” ¶ 34. The order on motion for review is affirmed.

Failure to state potential maximum term of commitment at disposition: This issue is not moot despite the fact that K.N.H. already completed his term of commitment at the YDC. K.N.H. was released to post-release supervision and it is not clear to the court if he remains in that status. Because K.N.H could potentially experience adverse consequences while on post-release supervision or face other potential adverse consequences, the issue is not moot. The court erred in its failure to state the precise duration of the disposition as required by G.S. 7B-2512(a). However, K.N.H. failed to show any prejudice to him as a result of that error. The disposition and commitment order is therefore affirmed.

Facts: The court accepted the juvenile’s admission to disorderly conduct without making any of the inquiries required by G.S. 7B-2407.

Opinion: The court’s acceptance of the juvenile’s admission without making any of the inquiries and statements required by G.S. 7B-2407 is reversible error.

NOTE: this is an unpublished opinion.

Facts: The court entered a dispositional order, committing the juvenile to the YDC. Prior to disposition, the court reviewed a predisposition report which indicated that the juvenile needed substance abuse treatment and a mental health assessment. The court was also provided a comprehensive clinical assessment (CCA). The CCA was conducted by the Thompson Juvenile Court Assessment Program. The CCA diagnosed the juvenile with unspecified disruptive, impulse-control, and conduct disorder; other specified trauma-and stressor-related disorder; and mild cannabis use disorder. The court did not refer the juvenile to the area mental health services director pursuant to G.S. 7B-2502(c).

Opinion: The trial court was presented with sufficient evidence of the juvenile’s mental illness to trigger its statutory duty to make a referral to the area mental health service director pursuant to G.S. 7B-2502(c). Although the court had the recommendations from the CCA prior to entering disposition, the purpose of G.S.7B-2502(c) was not fulfilled. Obtaining significant mental health services prior to disposition is not sufficient to satisfy the statutory duty of the trial court to refer the juvenile for an interdisciplinary evaluation. The statute envisions involvement by the area mental health services director in the disposition and responsibility for arranging for an interdisciplinary evaluation and mobilizing of resources for the juvenile. The juvenile in this case did not receive the benefit of the area director’s recommendation and involvement in the disposition. The failure of the court to refer the juvenile for an interdisciplinary evaluation was prejudicial to the juvenile because the predisposition report was completed after the CCA was received and eight days before the disposition and commitment order was entered. The predisposition report stated that additional assessment and treatment were necessary. The trial court erred in failing to refer the juvenile to the area mental health services director after it was presented with evidence of the juvenile’s mental illness. The disposition is vacated and the case is remanded for a new dispositional hearing.

NOTE: This is an unpublished opinion.

• Facts: A student reported that the juvenile had given him Adderall. The juvenile stated that he had given the student an ibuprofen. A petition charging the juvenile with possession of a controlled substance with intent to deliver (G.S. 90-95(a)(1)) was filed. The petition stated that the juvenile delivered “1 orange pill believed/told to be Adderall[.]” Juvenile was adjudicated delinquent for possession with intent to manufacture, sell, or deliver a controlled substance and placed on probation under a level 1 disposition.

• Opinion: Juvenile petitions serve essentially the same function as criminal indictments and are subject to the same requirement that they aver every element of a criminal offense, with sufficient specificity that clearly apprises the juvenile of the charged conduct. A fatally deficient petition fails to evoke the jurisdiction of the court. The offense of possession of a controlled substance with intent to manufacture, sell, or deliver has three elements: (1) possession of a substance; (2) the substance must be a controlled substance; and (3) there must be intent to sell or distribute the controlled substance. The petition cannot be based on a guess about whether the substance was a controlled substance or not. This petition only stated that the juvenile delivered something that was believed to be, and the State was told, was a controlled substance. The identification of the controlled substance is a crucial element of the offense. It is unclear whether a controlled substance was involved at all in this matter. The adjudication and disposition orders are vacated because the petition failed to properly allege the offense. The court also noted that, while additional issues raised on appeal do not need to be addressed, the lay testimony of the SRO regarding identification of the pill would not be competent evidence to identify the controlled substance. Expert witness testimony, based on a scientifically valid chemical analysis, is required to establish that a pill is a controlled substance.

• Facts: Zane, a guest at J.D.’s house for a sleepover, awoke to find his pants pulled down and J.D. behind him. J.D. also had his pants down and was engaged in a thrusting motion behind Zane. Zane testified that he believed someone was holding his legs and that he felt J.D.’s privates on his butt, although he did not feel penetration. Two other boys, Dan and Carl, were also present for the sleepover. Dan videotaped some of the incident on his phone. J.D. can be heard on the video telling Dan not to record the incident. At the end of the video, J.D. gives what may have been a thumbs up. The video was distributed by Dan to two others. J.D. was adjudicated delinquent for committing first-degree forcible sexual offense and second-degree sexual exploitation of a minor. Prior to disposition, J.D. admitted to attempted larceny of a bicycle in a separate incident. The trial court entered a Level 3 disposition, committing J.D. to a YDC.
• Second-degree sexual exploitation of a minor:  The trial court erred as a matter of law by denying J.D.’s motion to dismiss the charge of second-degree sexual exploitation of a minor. There is agreement that the recording was made by Dan and not J.D. The state relied on the theory of acting in concert as to J.D.’s culpability. There was insufficient evidence as to a common plan or purpose between J.D. and Dan. The evidence tended to show that J.D. did not want to be recorded, as he told Dan he didn’t want it recorded. If the hand gesture at the end of the video was a thumbs up, evidence of acting in concert requires more than mere approval. Adjudication for this charge is vacated.
• First-degree forcible sexual offense: This offense requires that the juvenile engaged in a sexual act with another person by force and against the will of the other person. A sexual act requires penetration, however slight. The victim unambiguously testified that penetration did not occur. The statements of the other children who were present and the video footage only suggest that penetration could have occurred. That is not enough to overcome the victim’s testimony regarding lack of penetration. Following J.D.’s motion to dismiss, the state conceded that there was not evidence of penetration. The trial court erred in denying J.D.’s motion to dismiss this charge and the adjudication is vacated.
• Attempted larceny: Presence at the crime scene coupled with the juvenile’s possession of tools used to commit the crime were sufficient evidence for the trial court to accept the juvenile's transcript of admission. There was no error in accepting the admission to attempted larceny. The initial disposition was based on the adjudications that are now vacated. The matter cannot be remanded for a new disposition based on adjudication of this offense because the juvenile turned 18 and there is therefore no longer juvenile jurisdiction in the matter.

Dissent

• Justice Newby agreed with the majority in that acceptance of the respondent’s admission was acceptable and that the evidence was insufficient to support the adjudications for second-degree sexual exploitation of a minor and first-degree forcible sexual offense. However, the evidence was sufficient to support the lesser included offense of attempted first-degree forcible sexual offense and the case should therefore have been remanded for entry of an amended adjudication against the respondent for attempted first-degree sexual offense.

• Facts: The juvenile was originally placed on three months of protective supervision after admitting to allegations in an undisciplined petition. The juvenile subsequently admitted to allegations of indirect contempt for violations of her undisciplined disposition and was placed on a Level 1 delinquency disposition that included twelve months of probation. As the term of probation was scheduled to expire, the State requested a six-month extension of probation on a motion for review. The trial court extended the juvenile’s probation for six months. The order extending probation did not include any written findings or conclusions.
• Opinion: G.S. 7B-2510(c) requires the court to find that the extension of probation is necessary either to protect the community or to safeguard the welfare of the juvenile. The court must make written findings supporting these statutory factors when extending a juvenile’s probation. Use of an outdated form may have impacted the court’s failure to make the necessary written findings. Because there was information before the trial court that could have supported the necessary findings of fact, the case is reversed and remanded for entry of a new order.

• Facts: E.A. was adjudicated delinquent for assault with a deadly weapon with intent to kill and malicious conduct upon a government official and ordered to probation supervision under a Level 2 disposition. At a subsequent hearing on a motion for review, probation was revoked and E.A. was committed to a youth development center. This new disposition was ordered after the court received and considered a predisposition report, a risk assessment, and a needs assessment. The predisposition report referred to a clinical assessment completed by Haven House in which E.A. was diagnosed with conduct disorder and intensive outpatient services were recommended.
• Grounds for appellate review:  While proper notice of the appeal was not given, the facts of the case are worthy of treating EA’s brief as a writ of certiorari pursuant to Appellate Rule 21. In addition, the State did not raise this jurisdictional issue in its brief and resulting prejudice to the State is not contemplated.
• Mandatory referral to the area mental health services director: As established in In re E.M., __ N.C. App. __, disc. review denied, __ N.C. __, (2019), G.S. 7B-2502(c) mandates that the trial court refer a juvenile to the area mental health services director for appropriate action when faced with any amount of evidence that the juvenile is mentally ill. This statute envisions the area director’s involvement in the disposition and responsibility for arranging an interdisciplinary evaluation and mobilizing resource to meet the needs of the juvenile. The State conceded and the court agrees that EA’s case is indistinguishable from E.M. The evidence before the trial court presented EA as being mentally ill. Failure to refer him to the area mental health services director is reversible error. The dispositional order is vacated and remanded for referral to the area mental health services director.

• Facts: Zane, a guest at J.D.’s house for a sleepover, awoke to find his pants pulled down and J.D. behind him. J.D. also had his pants down and was engaged in a thrusting motion behind Zane. Zane testified that he believed someone was holding his legs and that he felt J.D.’s privates on his butt, although he did not feel penetration. Two other boys, Dan and Carl, were also present for the sleepover. Dan videotaped some of the incident on his phone. J.D. can be heard on the video telling Dan not to record the incident. At the end of the video, J.D. gives a thumbs up. The video eventually ended up on Facebook. J.D. was adjudicated delinquent for committing first-degree forcible sexual offense and second-degree exploitation of a minor. Prior to disposition, J.D. admitted to attempted larceny of a bicycle in a separate incident. The trial court entered a Level 3 disposition, committing J.D. to a YDC, and denied J.D.’s request to be released pending his appeal.
• Second-degree sexual exploitation of a minor:  The evidence was insufficient to support this charge as a matter of law. There was no evidence that J.D. took an active role in the production or distribution of the video, as required for this offense. There is no evidence that J.D. acted with Dan as part of a common plan or purpose. Instead, the evidence shows that J.D. did not want to be filmed as he explicitly told Dan to stop. There is no evidence that J.D. wanted the video to be made or that he was the one who distributed it. Adjudication for this charge should be vacated.
• First-degree forcible sexual offense: This offense requires that the juvenile engaged in a sexual act with another person by force and against the will of the other person. A sexual act requires penetration, however slight. The victim specifically testified that penetration did not occur. The circumstantial evidence provided by the video cannot overcome the direct testimony of the victim. Therefore, the evidence was not sufficient to show that penetration occurred. The trial court erred in denying J.D.’s motion to dismiss this charge.
• Attempted larceny: There was not a sufficient factual basis for J.D.’s admission to this offense. There was not a showing of intent to steal, or assist others in stealing, the bicycle. The adjudications for attempted larceny should be vacated.
• Right of confrontation:  While J.D.’s attorney failed to object to the entry of out-of-court statements made by Dan and Carl during adjudication, the issue is still properly before the court on appeal because G.S. 7B-2405 requires the court to protect the rights of juveniles during a delinquency hearing, including the right of confrontation. The right to appeal is preserved when a trial court acts contrary to a statutory mandate and the juvenile is thereby prejudiced.

The out-of-court statements by Dan and Carl were used to overcome the testimony of the victim indicating that penetration did not occur. The State referenced the statements numerous times in closing statements. The additional evidence provided in these statements, that penetration occurred, was prejudicial to J.D.’s defense. The State failed to prove that admission of this testimony was harmless beyond a reasonable doubt.

• Disposition errors: The disposition and commitment orders did not contain adequate written findings. The trial court did not adequately explain its decision to ignore the evaluations and recommendation by the court counselor and CHA, which both recommended a Level 2 disposition. It also did not explain how its findings satisfied the five factors required by G.S. 7B-2501(c).
• Confinement pending appeal: The trial court’s order that only recited allegations made by defense counsel and the State does not satisfy the requirement that the court list compelling reasons for continuing J.D.’s confinement while the appeal was pending, as required by G.S. 7B-2605. There were also no compelling reasons stated on the Appellate Entries form.

Dissent

• First-degree forcible sexual offense: Penetration can be proved by circumstantial evidence alone. The video provides such circumstantial evidence through the position and proximity of J.D. and Zane and J.D.’s constant thrusting motion. J.D.’s own statement is also evidence of penetration, as he stated that he had a semi-erect penis, it was pressing against Zane’s anus, and he was thrusting. He also described the incident as “intercourse.” The trial court appropriately weighed this evidence against Zane’s testimony and found that at least slight penetration occurred. It is not the job of the appellate court to re-weigh the evidence. Zane’s testimony also provided sufficient evidence that J.D. acted with force and against Zane’s will. Finally, the tone of the conversation on the video between Dan and J.D. as well as the nature of their actions on the video support the inference that J.D. was aided and abetted by Dan. There was sufficient evidence to deny the motion to dismiss this charge.
• Sexual exploitation of a minor: The evidence, viewed in the light most favorable to the State, supports an inference that J.D. acted in concert with Dan in recording the incident. J.D.’s tone, the position of the cell phone, and J.D.’s action of giving a thumbs up at the end of the recording all support the inference that J.D. had knowledge and approved of the recording and that he was working with Dan to make the video.
• Right of confrontation: Based on the harmless beyond a reasonable doubt standard, inclusion of the statements of Dan and Carl suggesting that penetration occurred does not justify a new hearing. The trial court based its determination that penetration occurred on the video and J.D.’s own statements and not on these statements.
• Attempted larceny admission: the recitation of facts that the bicycle was stolen by two boys and with bolt cutters, J.D. was found with two boys matching the description of the boys who stole the bike, J.D. admitted to knowing about the larceny, and the bolt cutters used in the larceny were found in J.D.’s possession laid a sufficient factual basis for accepting J.D.’s admission to the larceny.
• Disposition order: the trial court made multiple findings of fact that addressed all of the five factors required to be addressed in orders of disposition under G.S. 7B-2501. Adequate evidence was provided to support those findings. The trial court’s choice between a Level 2 or Level 3 disposition should only be disturbed on a showing that the decision was manifestly unsupported by reason. Evidence of J.D.’s good behavior does not support the conclusion that the trial court’s decision to impose a Level 3 disposition was unreasonable.
• Confinement pending appeal: While compelling reasons are required to justify denial of a juvenile’s release pending appeal, those reasons do not need to be verbose. The trial court’s written acknowledgement that J.D. had a lack of structure in the home, continued with delinquent behavior following this adjudication, and that he was to remain at the YDC for the protection of the public was sufficient.

• Facts: The juvenile was committed to a Youth Development Center under a Level 3 disposition that resulted from a violation of his probation. This appeal was based on the district court’s denial of a request for a continuance made by the juvenile’s attorney at the review hearing. The attorney requested a continuance because he had just met his client that afternoon and a potential witness was not available to testify. The court denied that request and ordered the Level 3 disposition.
• Opinion: The appeal is dismissed as moot because the juvenile reached the age of 18 and was discharged from the Youth Development Center while the appeal was pending. As a result, the subject matter of the appeal ceased to exist. While the briefing period for the appeal concluded prior to the juvenile’s eighteenth birthday, the juvenile did not file a supplemental brief addressing mootness or presenting any collateral consequences of the disposition order.

Facts: Police responded to B.W.’s home following a call alleging that a juvenile was using drugs and alcohol there. B.W. answered the door and the detective smelled the odor of marijuana and observed B.W. to have red, glassy eyes. B.W. denied using marijuana. The police heard commotion in the home and a second person appeared on the front steps from inside the home and stated that there was a male inside the house. The police then conducted a protective sweep of the home. During that sweep, the police saw a bag of marijuana in plain view on a mattress in an attic space on the third floor of the house. B.W.’s father then returned home and signed consent for the police to search the house. The police seized the bag of marijuana during this second search of the home. They also found a backpack containing men’s clothing in the same third floor attic area and a cell phone that did not belong to B.W. B.W. was charged with resisting, delaying, and obstructing a public officer (“RPO”) and possession of a schedule VI controlled substance. B.W. was found not responsible for the RPO charge and the court set a subsequent date for adjudication of the possession charge. B.W. was found responsible for both possession and RPO on this subsequent date. The appeal raised three arguments:

• The trial court erred in denying the motion to suppress the seized marijuana;
• The trial court erred in denying the motion to dismiss the possession offense; and
• The record contained a clerical error regarding the RPO offense.

Opinion: The State did not put forth substantial evidence of the possession charge. Possession requires substantial evidence of actual or constructive possession. The State did not allege actual possession in this case. Constructive possession requires a showing of intent and capability to maintain control and dominion over the contraband. Because B.W. did not have exclusive control over the residence, there must be other incriminating circumstances, such as:

• proximity to the contraband,
• indicia of control over the location, and
• other incriminating circumstances.

No evidence was provided to show that B.W. was in the third floor attic space, in proximity to the marijuana. The backpack and cell phone found in that space did not belong to B.W. and therefore do not support proximity. There was also no evidence that B.W. had control over the attic space. While the police testified that the bonus room adjacent to the attic appeared to be a female’s room and B.W. is female, there was no evidence regarding who else lived in the home. It is possible that another female household member resided in that room. Finally, red, glassy eyes and the odor of marijuana, in the absence of proximity and control, are not sufficient to prove constructive possession. The trial court’s denial of the motion to dismiss for insufficient evidence regarding the possession charge is therefore reversed.

The court did not need to address the motion to suppress given that the possession charge is dismissed.

The trial court made a clerical error when it stated that B.W. was responsible for the RPO charge when she had previously been found not responsible for that charge. Because the motion to dismiss the other charge is granted in this decision, the case is not remanded for correction of the clerical error. Instead, in the interest of judicial efficiency, the judgment finding B.W. responsible for the RPO offense is vacated.

The trial court erred in failing to advise the juvenile of his right against self-incrimination before he testified and incriminated himself during an adjudication hearing. The juvenile was charged with assault on a government employee after allegedly throwing a milk carton at a teacher and hitting her in the face with it. Defense counsel called the juvenile as a witness and, on direct examination, the juvenile admitted to throwing the milk carton at the teacher out of frustration and intending to hit her with it. After closing arguments, the trial judge informed the juvenile that he had forgotten to advise him of his right against self-incrimination prior to his testimony and asked if the juvenile understood that right. Pursuant to the plain language of G.S. 7B-2405, there is an affirmative duty on the trial court to protect the enumerated rights set forth in that statute, including the privilege against self-incrimination. In re J.R.V., 212 N.C. App. 205 (2011). This includes at least some colloquy between the trial court and the juvenile to ensure that the juvenile understands his right against self-incrimination before choosing to testify. The trial court committed error in asking whether the juvenile understood his right against self-incrimination after he had already testified. This was not harmless error because his testimony was incriminating and prejudicial.  

• Facts: The incident occurred at school and began with the juvenile throwing a chair in the cafeteria. The School Resource Officer (SRO) testified that no one was hit by the chair, nor did he see anyone who could have been hit by the chair. After throwing the chair the juvenile ran from the cafeteria and the SRO followed him. The SRO came up quietly behind the juvenile and grabbed him. The juvenile yelled “no” and cursed, and subsequently explained that he had been playing with his brother in the cafeteria. He was adjudicated delinquent for disorderly conduct and resisting a public officer.
• Opinion: The evidence, even when considered in the light most favorable to the State as required on appeal, did not support adjudication on either charge. Disorderly conduct requires evidence of a public disturbance in which the juvenile engaged in 1) fighting; 2) other violent conduct; or 3) conduct creating the threat of imminent fighting or other violence. G.S. 14-288.4(a)(1). The evidence was not sufficient to establish fighting, violence, or the imminent threat thereof. “Throwing a single chair with no other person nearby and without attempting to hit another person and without hitting even any other item in the cafeteria is not disorderly conduct as defined by North Carolina General Statue § 14-288.4(a)(1).” Slip. Op. at 7. Adjudication for resisting a public officer requires: “(1) that the victim was a public officer; (2) that the defendant knew or had reasonable grounds to believe that the victim was a public officer; (3) that the victim was discharging or attempting to discharge a duty of his office; (4) that the defendant resisted, delayed, or obstructed the victim in discharging or attempting to discharge a duty of his office; and (5) that the defendant acted willfully and unlawfully, that is intentionally and without justification or excuse.” Slip Op. at 8. Evidence did not show that the juvenile knew or had reasonable grounds to know that the person grabbing him was a public officer, that the juvenile resisted, delayed, or obstructed the SRO, nor that the juvenile acted willfully and unlawfully, as testimony established that the SRO intentionally snuck up behind the juvenile and the juvenile merely cursed and quickly returned to calm.

• Facts: The juvenile, who was already on probation, encouraged another youth to pull the fire alarm of a middle school on the last day of school. Evidence presented during adjudication included that the juvenile asked the other youth to pull the alarm four different times during at least two classes before the other youth pulled the alarm. Chaos followed as students attempted to exit the school. The juvenile was adjudicated delinquent for disorderly conduct. 
• Opinion:
  • Sufficiency of the Evidence: While counsel for the juvenile made a motion to dismiss at the close of the State’s evidence, counsel proceeded to present evidence on behalf of the juvenile after that motion was denied. Counsel did not renew the motion at the close of all evidence, failing to preserve the issue for appeal. The Court declined to review this argument pursuant to Rule 2 because there was sufficient evidence for each element of the criminal offense. Manifest injustice cannot exist and suspension of appellate rules pursuant to Rule 2 is not justified when there is sufficient evidence of each element of the offense. This issue is dismissed.
  • Sufficiency of Adjudication Order: The adjudication order was sufficient to comply with G.S. 7B-2411. It included: identification of disorderly conduct as the type of offense; offense date; and date the petition was filed. It also included: delinquency hearing as the type of proceeding; judge’s signature; date; proof of filing; ; a description of the specific conduct; and the conclusion of law indicating delinquency.
  • Dispositional Considerations: The trial court must consider each of the five factors listed in G.S. 7B-2501(c) when crafting a disposition. This holding resolves the conflict created by In re D.E.P. ___ N.C.App. ___ (Febraury 7, 2017) which diverged from a previous line of cases in holding that there is not a need for finding of facts regarding all five factors listed in G.S. 7B-2501(c), including factors which are irrelevant to the case or regarding which no evidence was presented. When two lines of cases conflict, the older line of cases is controlling. Respess v. Respess, 232 N.C. App. 611 (2014). The older line of cases on this issue (In re Ferrell, 162 N.C. App. 175 (2004); In re V.M., 211 N.C. App. 389 (2011); In re K.C., 226 N.C. App. 452 (2013); and In re G.C., 230 N.C. App. 511 (2013)) hold that all five factors enumerated in the statute must be considered when developing a disposition and that is therefore the controlling law. Two required factors, the seriousness of the offense and the degree of culpability of the juvenile, were not addressed in this dispositional order. Remanded for further findings of fact to address these two factors.
  • Improper Delegation of Authority: The trial court properly selected community dispositions that are allowable under G.S. 7B-2506, appropriately leaving day-to-day implementation to the court counselor. 
  • Clerical Error: Failure to check the appropriate box in the conclusions of law section on the pre-printed adjudication order form was clerical error. An error in the supplemental order regarding the date that twelve months of probation would terminate was clerical error. Remanded for correction of both clerical errors.

• Facts: The juvenile pushed a printer and computer off his teacher’s desk, causing damage to the printer. He made a motion to dismiss at the close of the State’s evidence, asserting that there was no evidence that the owner of the property was the Charlotte-Mecklenburg Board of Education. The motion was denied and the juvenile was adjudicated delinquent for injury to personal property. He was classified as a Level 2 offender and given a disposition of 10 days in detention.  
• Opinion: During the motion to dismiss at trial, counsel for the juvenile twice acknowledged that the Board of Education was properly identified as a corporate body that can own property. The issue was also not raised by the juvenile at trial and, therefore, cannot be raised on appeal. The argument regarding whether the Board of Education was an entity capable of owning property was therefore not properly before the court. The evidence clearly showed that the school supplied computers and printers to teachers and they were therefore the property of the school. The trial court did not err in denying the motion to dismiss on these grounds. An outdated preprinted disposition form was used by the court. While the court could have properly ordered the juvenile, as a Level 2 offender, to up to 14 days of intermittent confinement under G.S. 7B-2506(20), the old version of the form did not contain that option. Instead, the only intermittent confinement option on the form allowed for only up to five days of confinement pursuant to G.S. 7B-2506(12). The box next to this option was checked with a handwritten notation of “10 days detention.” The trial court was required to impose at least one Level 2 disposition found in G.S. 7B-2506 (13)–(23). G.S. 7B-2508(d). Failure to do so was reversible error. Remanded for resentencing at which time the court may order up to five days of detention pursuant to G.S. 7B-2506(12) and must impose at least one of the mandatory dispositional alternatives in G.S. 7B-2506(13)-(23).

On remand from the NC Supreme Court’s decision in State v. Saldierna, __ N.C. __, 794 S.E.2d 474 (2016), the Court of Appeals reversed the trial court’s order denying the juvenile’s motion to suppress and vacated his convictions because the waiver of his statutory and constitutional rights during a custodial interrogation was involuntary.

Facts: The juvenile, age 16, was arrested for his alleged involvement in recent burglaries of Charlotte area homes. The arresting officers took him to a police station where a detective provided him with copies of a Juvenile Waiver of Rights Form in both English and Spanish and read the English version to him. The juvenile initialed the waiver on the English version of the form but then immediately asked, “Um, can I call my mom,” and the interrogating officer allowed the juvenile to use her cell phone. The juvenile was unable to reach his mother and returned to the booking area where the interrogation resumed. During the interrogation, he confessed. The juvenile moved to suppress his confession on the ground that it was obtained in violation of his rights under Miranda and G.S. 7B-2101, which the trial court denied.

Waiver of Rights: Because the juvenile’s waiver of rights was not made knowingly, willingly, and understandingly, the trial court erred by denying the juvenile’s motion to suppress. Emphasizing that “the totality of the circumstances must be carefully scrutinized” when evaluating waivers by juveniles, the court concluded that the trial court’s findings lacked such scrutiny. Also, the trial court’s findings that the juvenile understood the interrogating officer’s questions and statements regarding his rights were not supported by the evidence. The juvenile was 16-years-old with an 8th grade education and his primary language was Spanish. Although he could write in English, he had difficulty reading it and understanding it as spoken. The interrogation occurred in the booking area of the Justice Center in the presence of three officers, and there was no evidence the juvenile had any prior experience with law enforcement officers or understood the consequences of speaking with them. Also, the transcript of the recorded interrogation contains several “unintelligible remarks or non-responses by defendant” which do not confirm that he understood what was being asked. Despite the “express written waiver” form executed by the juvenile, the court declined to “give any weight to recitals, like the juvenile rights waiver form signed by defendant, which merely formalized constitutional requirements.” The court explained,

[t]o be valid, a waiver should be voluntary, not just on its face, i.e., the paper it is written on, but in fact. It should be unequivocal and unassailable when the subject is a juvenile. The fact that the North Carolina legislature recently raised the age that juveniles can be questioned without the presence of a parent from age fourteen to age sixteen is evidence the legislature acknowledges juveniles’ inability to fully and voluntarily waive essential constitutional and statutory rights.

Furthermore, the juvenile’s request to call his mother immediately after signing the waiver stating that he was giving up his rights “shows enough uncertainty, enough anxiety on the juvenile’s behalf, so as to call into question whether, under all the circumstances present in this case, the waiver was (unequivocally) valid.”

In a disorderly conduct case, the adjudication was reversed where the petition was not signed by a juvenile court counselor nor marked as “Approved for filing.” A petition alleging delinquency that does not include the signature of a juvenile court counselor (or other appropriate State representative) and the language “Approved for Filing” fails to invoke the trial court’s subject matter jurisdiction. The legislature, by enacting the Juvenile Code, imposed specific requirements that must be satisfied before a district court obtains jurisdiction in juvenile cases. G.S. 7B-1703(b) provides that before a juvenile petition alleging delinquency may be filed, it must contain the signature of a juvenile court counselor, the date, and the words “Approved for Filing.” No prior cases have addressed whether the signature and “Approved for Filing” language are prerequisites to jurisdiction in a delinquency case. However, the court held in In re Green, 67 N.C. App. 501 (1984), that the trial court lacked subject matter jurisdiction over a petition alleging abuse and neglect where the petition was not signed and verified by the petitioner, as required by the Juvenile Code. Based upon this precedent, the petition in this case was fatally defective and failed to invoke subject matter jurisdiction. The court declined to extend the holding of In re D.S., 364 N.C. 184 (2010), to recognize the noncompliance with the signature and “Approved for Filing” language as non-jurisdictional errors. D.S. held that the timelines imposed by G.S. 7B-1703(b) for filing a juvenile petition are not prerequisites to subject matter jurisdiction. However, extending D.S. in this context would conflict with a statutory purpose of the Juvenile Code – “to provide an effective system of intake services for the screening and evaluation of complaints.” G.S. 7B-1500. The court counselor’s signature and approval of the petition is the only indication on the face of a petition that a complaint was properly screened and evaluated.

Concurring Opinion. The concurring opinion found that even if the petition was not fatally defective, the adjudication and disposition orders would need to be reversed because there was no evidence of disorderly conduct. The juvenile was the victim of an assault by another student who walked up to him and punched him the face as he stood in the hallway waiting for school to begin. The juvenile fell to the floor and unsuccessfully tried to stand as the other student kept punching him but threw one or two punches at his attacker before school officials broke up the fight. A behavioral specialist, who witnessed the entire incident, escorted the juvenile to his office and heard him utter “profanity” as they walked down the hallway. When he instructed the juvenile to stop “cursing,” he stopped. The adjudication of delinquency was based entirely on this use of “profanity.” However, there is no evidence that anyone other than the behavioral specialist heard the profanity or of the particular words the juvenile used. Disorderly conduct at school under G.S. 14-288.4(a)(6) requires both an intent to cause a disturbance and an actual disturbance of school instruction. Here, the juvenile’s “profanity” was a response to an attack by another student, not an intent to disturb the educational process, and no actual disturbance occurred. Moreover, both the adjudication and disposition orders failed to contain the necessary findings required by the Juvenile Code.

The trial court was not required by G.S. 7B-2512 to make findings of fact that addressed each of the G.S. 7B-2501(c) factors and did not abuse its discretion in ordering a Level 3 commitment based on the juvenile’s repeated violations of probation.

Disposition Order Findings. The court held that prior appellate decisions finding reversible error based on a trial court’s failure to make written findings on the G.S. 7B-2501(c) factors resulted from a mischaracterization of the holding in In re Ferrell, 162 N.C. App. 175 (2004), and subsequent repetition of this error. In Ferrell, the court set aside the portion of a disposition order that transferred custody of the juvenile from his mother to his father. The opinion in Ferrell cited the requirements of G.S. 7B-2501(c) and G.S. 7B-2512 in finding that the disposition order contained insufficient findings to support the transfer of custody. However, Ferrell did not involve any consideration of the court’s determination of the appropriate disposition level nor did it discuss the extent to which a disposition order must reference the factors set out in G.S. 7B-2501(c). Nonetheless, in a later published opinion, In re V.M., 211 N.C. App. 389, 391-92 (2011), the court reversed a disposition order, stating “we have previously held that the trial court is required to make findings demonstrating that it considered the [G.S.] 7B-2501(c) factors in a dispositional order[,]” and cited Ferrell as the relevant authority. The court noted that although this mischaracterization of Ferrell has been repeated in several cases, Ferrell did not actually decide the issue of the trial court’s duty to make findings referencing the G.S. 7B-2501(c) factors, nor did V.M. As a result, the court concluded that its decision does not overrule any decision of a prior panel of the Court of Appeals. Finally, although the trial court was not required to make written findings that referenced all of the factors in G.S. 7B-2501(c), the trial court’s findings indicated that it did in fact consider these factors.

Level 3 Commitment Order. The trial court did not abuse its discretion in entering a Level 3 Disposition and Commitment Order where the evidence showed the juvenile had multiple probation violations, the trial court continued him on probation several times, and the trial court had warned the juvenile at his last probation violation hearing that if he failed to comply with probation again, he would be sent to training school.

The defendant’s mandatory sentence of life imprisonment without parole for a murder he committed at age seventeen violated the Eighth Amendment’s prohibition against cruel and unusual punishment under Miller v. Alabama. In 1999, defendant was sentenced to life imprisonment without parole for a felony murder conviction that resulted from his involvement in a disputed drug deal that occurred when he was 17-years old. In 2012, defendant filed a motion for appropriate relief challenging his life sentence based on the recent decision in Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012) (mandatory life without parole for a juvenile offender violates the Eighth Amendment). In 2013, the trial court vacated defendant’s life sentence and ordered a new sentencing hearing based on its conclusion that Miller applied retroactively to defendant’s sentence. The state sought appellate review and before the appeal was decided, the U.S. Supreme Court filed an opinion in Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718 (2016), holding that Miller announced a new substantive rule that applied retroactively to cases on collateral review. In a supplemental brief filed by the state in response to Montgomery, the state argued that defendant was not entitled to resentencing under Miller and Montgomery because defendant’s sentence “is not really life imprisonment without parole.” Instead, the state argued that because G.S. 15A-1380.5 (repealed effective December 1, 1998), applies to defendant’s offenses and entitles him to a review of his sentence by a superior court judge after 25 years, he received a sentence of life imprisonment “with a meaningful opportunity to obtain release.” The Supreme Court disagreed, noting that the only effect of the review permitted by the statute is that a judge must recommend to the governor or a designated agency whether or not the defendant’s sentence should be altered or commuted and that the possibility of alteration or commutation of the sentence is “deeply uncertain” given the minimal guidance on the circumstances that might support such a result. The Court also concluded that “[G.S.] 15A-1380.5 does not address the central concern of Miller – that a sentencing court cannot treat minors like adults when imposing a sentence of life imprisonment without the possibility of parole.” The permissible remedies for a Miller violation, parole consideration and resentencing, contemplate that a reviewing body will consider whether the juvenile offender has matured during the juvenile’s term of imprisonment. Nothing in G.S. 15A-1380.5 requires a reviewing judge to consider this factor. Because defendant’s sentence is unconstitutional under Miller, the trial court’s order vacating that sentence and ordering a new sentencing hearing is affirmed.

The defendant’s mandatory sentence of life imprisonment without parole for a murder he committed at age seventeen violated the Eighth Amendment’s prohibition against cruel and unusual punishment under Miller v. Alabama. In 2008, defendant was convicted of armed robbery and first-degree murder based on malice, premeditation, and deliberation and the felony murder rule resulting from an incident that occurred when defendant was 17-years old. In 2013, defendant filed a motion for appropriate relief challenging his sentence of life without parole based on the recent decision in Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012) (mandatory life without parole for a juvenile offender violates the Eighth Amendment), and asserting that Miller applied retroactively to his sentence. The trial court denied defendant’s motion, and defendant sought appellate review. During the pendency of defendant’s appeal, the U.S. Supreme Court filed an opinion in Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718 (2016), holding that Miller announced a new substantive rule that applied retroactively to cases on collateral review. As a result, the Supreme Court reversed the trial court’s order denying defendant’s motion for appropriate relief and remanded the case for resentencing pursuant to G.S. 15A-1340.19A et. seq.

In an attempted robbery case, the trial court did not err by denying the 16-year-old defendant’s motion to suppress statements he made to a police officer outside the presence of his parent. After executing an arrest warrant, officers placed defendant in custody and transported him to a local precinct where he was interrogated by a police detective. Prior to interrogating defendant, the detective read defendant his Miranda and juvenile rights from a “Juvenile Waiver of Rights” form. The bottom of the form contained two separate checkboxes specifying either that the juvenile elected to answer questions: (1) in the presence of a lawyer, parent, guardian, or custodian, or (2) without a lawyer, parent, guardian, or custodian present. In the first checkbox, the detective filled in the name of defendant’s mother as the person who was present with defendant during the questioning. No blank spaces were filled in the second checkbox which contained the waiver of rights. The juvenile placed his initials beside each right listed on the form and next to the first checkbox, erroneously indicating that his mother was present. The appellate court found there was evidence to support the trial court’s findings of fact that defendant did not request the presence of his mother and that his initial beside the first checkbox was merely an error. These findings support the trial court’s conclusion that defendant did not invoke his right to have his mother present during questioning. The court also rejected defendant’s argument that the trial court erred by denying his motion to suppress because the detective failed to clarify an ambiguous invocation of his statutory right to have a parent present, as required by State v. Saldierna, __ N.C. App. __, 775 S.E.2d 326, disc. review allowed, 368 N.C. 356 (2015). Because the Court of Appeals’ decision in Saldierna is currently pending review by the N.C. Supreme Court pursuant to the state’s petition for discretionary review, the issue is still unsettled. Moreover, the court found that Saldierna is inapplicable because defendant did not make a statement, ambiguous or otherwise, invoking his right to have a parent present in this case.

In a first-degree statutory rape case, the superior court lacked original subject matter jurisdiction for three out of four counts of first-degree statutory rape where no evidence showed that the defendant was at least 16-years-old at the time of the offenses. All four indictments alleged that the offenses occurred between “January 1, 2011 and November 30, 2011.” The state argued defendant was at least 16 during the relevant time period because the arrest warrants erroneously listed his birth date as 9/14/1994. However, defendant was actually born on 9/14/1995 and did not turn 16 until September 14, 2011. The evidence established that only the fourth offense occurred after defendant’s 16th birthday. Neither party, including defendant’s trial counsel, recognized the error regarding his age. Over a dissent, the court found jurisdiction was proper as to the fourth offense, which occurred in November 2011, even though the indictment alleged periods of time during which defendant was both 15 and 16. The court noted that temporal specificity requirements for indictments in cases involving sexual assaults on children are relaxed and that the defendant could have requested a special verdict or moved for a bill of particulars for more specificity as to the allegations. The dissent would have found that the superior court lacked jurisdiction for all four offenses because defendant was under age 16 during over 75% of the time period alleged in the indictments. Referring to the mistake as a “travesty of justice,” the dissent stated that the assertion of jurisdiction over defendant as an adult based on a mistake as to his age was a jurisdictional error that “irrevocably changed the course of his prosecution.”

There was substantial evidence identifying the juvenile as the perpetrator of a misdemeanor larceny such that the trial court did not err by denying his motion to dismiss. On October 16, 2013, at approximately 5:30 p.m., three African-American males stole the victim’s iPhone from her table at a Wendy’s restaurant and then ran away. The victim chased after them and encountered a man, Mr. Wall, who had just driven past three African-American males down the street. Mr. Wall drove back to the same location and saw the males again, and they ran. Both the victim and Mr. Wall reported to police officers that the juvenile was wearing a red jacket and that another suspect was wearing gray. Mr. Wall identified the juvenile and one of his companions in a showup later that same day, and the victim identified the juvenile at the adjudication hearing. When the juvenile was apprehended, he was wearing a red hoodie jacket and had a Wendy’s spoon in his back pocket, along with two Wendy’s receipts that were time-stamped 5:29 p.m. and 5:33 p.m., despite his denial that he had been at Wendy’s that day.

The trial court erred by sentencing defendant to life without parole for a murder committed when defendant was 16 because the trial court’s one-page order failed to comply with the statutory mandate to “include findings on the absence or presence of any mitigating factors” under G.S. 15A-1340.19C(a). When sentencing a minor for a murder not based solely upon the felon murder rule, the trial court must consider “all the circumstances of the offense and the particular circumstances of the defendant” and include findings of fact on “the absence or presence of any mitigating factors.” The appellate court found that the trial court’s order made cursory but adequate findings as to some of the statutory factors but failed to address several others, including the defendant’s rehabilitative potential which is a significant factor. The court also noted that if no evidence is presented as to a particular factor, the trial court’s order should so state and indicate that, as a result, that factor was not considered.

The trial court’s disposition order did not violate G.S. 7B-2513(a), which authorizes a maximum commitment period that does not exceed the maximum possible sentence that any adult could receive for the same offense, without consideration of prior record levels or the existence or nonexistence of aggravating and mitigating factors under structured sentencing. G.S. 7B-2513(a) provides that “[n]o juvenile shall be committed to a [YDC] beyond the minimum six-month commitment for a period of time in excess of the maximum term of imprisonment for which an adult in prior record level VI for felonies or in prior conviction level III for misdemeanors could be sentenced for the same offense[.]” In this case, the juvenile was adjudicated delinquent for the Class I felony of breaking or entering a motor vehicle, for which an adult could be sentenced to a maximum of 21 months in the presumptive range or a maximum of 24 months in the aggravated range. The juvenile was committed for an indefinite period of at least 6 months, but not to exceed his 18^th birthday, resulting in a maximum commitment period just short of 24 months. On appeal, he argued that because G.S. 7B-2513(a) does not explicitly reference the maximum aggravated term for an adult, his maximum possible commitment should be limited to the maximum presumptive term for an adult in a prior record level VI, based on the rule of lenity. The appellate court rejected this argument, relying on its holding in In re Carter, 125 N.C. App. 140 (1987), that former G.S. 7A-652 (the predecessor to G.S. 7B-2513(a)) authorized a maximum commitment equivalent to the maximum possible sentence that any adult could receive for the same offense. The court said that its rationale for the holding in Carter – maintaining “judicial flexibility” in juvenile dispositions – applies equally to G.S. 7B-2513(a).

***In a footnote, the court noted that a juvenile’s commitment may, nonetheless, be extended beyond the maximum adult sentence when the Division of Juvenile Justice determines that an extension is necessary to continue the juvenile’s plan of care or treatment. A juvenile must receive written notice of the extension at least 30 days prior to the juvenile’s scheduled release date and may request a hearing to contest the extension. See G.S. 7B-2515.

In an assault case, the trial court’s adjudication order complied with G.S. 7B-2411, which requires a written finding that “the allegations in the petition have been proved [beyond a reasonable doubt].” In the blank space on the adjudication order where the trial court is to state its findings of fact which “have been proven beyond a reasonable doubt,” the trial court indicated “please see attached ‘Adjudication Findings of Fact.’” The attached document contained detailed findings that, according to the adjudication order, had been proven beyond a reasonable doubt.

The trial court did not abuse its discretion by declining to impose a Level 2 disposition based upon written findings of extraordinary needs under G.S. 7B-2508(e). Because the juvenile had a “medium” delinquency history level and was adjudicated delinquent for a “violent” offense, the disposition chart prescribed a Level 3 disposition. The record indicated the trial court made a reasoned decision after hearing all the evidence presented at the disposition hearing and considering the juvenile’s rehabilitation and treatment needs.

The trial court did not err by finding that the juvenile had two prior adjudications, even though one of them occurred after the adjudication of the offense for which disposition was being ordered. The juvenile was adjudicated delinquent on three separate dates: January 5, 2012, for communicating threats, a Class 1 misdemeanor; November 29, 2012, for robbery with a dangerous weapon (RWDW), a Class D felony; and December 3, 2012, for larceny of a firearm, a Class H felony. On March 4, 2013, all three adjudications were calendared for disposition. The trial court entered the disposition based on the RWDW offense, which constitutes a “violent” offense, and found that the juvenile had two prior adjudications for communicating threats and larceny of a firearm, which placed him at a “medium” delinquency history level. Based on the dispositional chart in G.S. 7B-2508(f), the court entered a Level 3 disposition and committed the juvenile to a youth development center. The juvenile appealed. Finding that a prior adjudication is analogous to a prior conviction, as defined by G.S. 15A-1340.11(7), the court held the larceny adjudication was a prior adjudication within the meaning of G.S. 7B-2507(a) because it occurred before the disposition hearing and entry of the disposition.