Opinion
No. 08-92.
August 19, 2008.
Guilford County, No. 07 JB 288.
Appeal by juvenile from order of adjudication entered 19 July 2007 and order of disposition entered 27 September 2007 by Judge Lawrence C. McSwain in District Court, Guilford County. Heard in the Court of Appeals 18 August 2008.
Attorney General Roy Cooper, by Assistant Attorney General Charlene Richardson, for the State. Sofie W. Hosford, for juvenile-appellant.
A motion to dismiss for insufficient evidence will be denied if the State has presented substantial evidence "of each essential element of the offense charged, or of a lesser offense included therein[.]" Here, because the State presented substantial evidence of simple assault, a lesser included offense of the charged offense of assault with a deadly weapon, we find no error in the trial court's denial of the juvenile's motion to dismiss.
State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (emphasis added).
On 10 April 2007, a juvenile petition was filed alleging that juvenile A.M. committed assault with a deadly weapon against victim J.J., "with a 11 inch [sic] carving knife, by pointing the knife ather stating she would slit her throat." The juvenile denied the allegations, and the adjudication hearing was held on 6 July 2007.
At the hearing, the State presented evidence tending to show that, on 21 February 2007, the eleven-year-old juvenile and twelve-year-old J.J. rode the same bus after school. The juvenile and J.J. began arguing on the bus, and the juvenile called J.J. names. After getting off the bus, J.J. walked with her sister and cousins to their house, which was near the juvenile's house. Several witnesses testified at the hearing that the juvenile and J.J. shoved and hit each other on the bus and after getting off.
When they reached the juvenile's house, J.J. remained outside while the juvenile went inside and then returned with two knives that she pointed at J.J., saying, "Don't mess with me. You don't know me. I'll hurt you." According to J.J., the juvenile then told her she would "slit [her] throat" and "put [her] to sleep," and that J.J. believed that the juvenile was going to cut or stab her. J.J. took a step back and responded, "you're not going to touch me," whereupon the juvenile went back inside her house and J.J. and her cousins left. The juvenile did not present any evidence at the hearing.
At the close of the evidence, the juvenile's attorney made a motion to dismiss the charge of assault with a deadly weapon for insufficient evidence, which was denied by the trial court. Following closing arguments, the trial court found that the charge of assault with a deadly weapon had not been proven, but that a simple assault had occurred. The court made findings of fact that the juvenile struck or hit J.J., as well as pushed or shoved J.J. The court adjudicated the juvenile delinquent and continued the case for disposition.
At that point, the juvenile's attorney again moved to dismiss the charge, arguing that a fatal variance existed between the allegations in the petition as to assault with a deadly weapon and the evidence at the hearing to support simple assault. Although the attorney argued that the juvenile would have defended herself differently against a charge of simple assault involving striking, hitting, shoving, and pushing J.J., the trial court denied the motion on the basis that simple assault is a lesser included offense of assault with a deadly weapon and thus included in the allegations of the petition. Disposition was continued until 30 August 2007, at which time the trial court ordered the juvenile released from the protective supervision of the court to her parents, and ordered the matter closed.
The juvenile appeals, arguing that the trial court erred by denying her motion to dismiss the petition on the grounds that there was a fatal variance between the allegations in the petition and the evidence offered at the hearing. Specifically, the juvenile contends that she was denied proper notice of the charge of simple assault based on hitting or shoving because the petition asserted facts that the assault occurred by use of a knife and threats of harm. We find this argument to be without merit.
Upon a motion to dismiss, the trial court must determine "whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Moreover, a trial court is required to "submit lesser included offenses as possible verdicts, even in the absence of a request by the defendant, where sufficient evidence of the lesser offense is presented at trial." State v. Lowe, 150 N.C. App. 682, 686, 564 S.E.2d 313, 316 (2002). This Court reviews the trial court's decision to deny a motion to dismiss by viewing the evidence in the light most favorable to the State, including giving the State the benefit of all reasonable inferences arising from the evidence. Scott, 356 N.C. at 596, 573 S.E.2d at 869.
In the instant case, the juvenile concedes that simple assault is a lesser included offense of assault with a deadly weapon, the charge described in the petition against her. As such, the juvenile had notice that simple assault was a possible verdict against her if the State presented sufficient evidence to support that charge at the hearing. The testimony showed that the incident between the juvenile and J.J. involved a series of arguments and physical contact which began on the school bus and continued thereafter as the individuals walked toward the juvenile's house. The State presented ample evidence through testimony from J.J. and several witnesses that the juvenile hit and shoved J.J., which is sufficient to support an adjudication of delinquency for simple assault. See, e.g., State v. Bell, 87 N.C. App. 626, 632, 362 S.E.2d 288, 292 (1987) (holding that evidence that the defendant struck the victim with his hands was sufficient to support a conviction for simple assault, even upon a warrant charging the defendant with felonious assault with intent to kill with a handgun); N.C. Gen. Stat. § 14-33(a) (2005).
Accordingly, we find that the trial court did not err in denying the juvenile's motion to dismiss.
No error.
Judges ELMORE and GEER concur.
Report per Rule 30(e).