Opinion
No. 07-819.
Filed April 15, 2008.
Robeson County Nos. 07JB55, 07JB56.
Appeal by A.W. and K.M. from orders entered 13 March 2007 by Judge James Gregory Bell in Robeson County District Court. Heard in the Court of Appeals 10 January 2008.
Attorney General Roy A. Cooper, III, by Associate Attorney General Melody R. Hairston, for the State. Mary McCullers Reece, for defendant-appellant A.W. Terry F. Rose, for defendant-appellant K.M.
Juveniles A.W. and K.M. (collectively "the juveniles") appeal their adjudications of delinquency and restitution orders. For the reasons stated below, we vacate.
Rose Callahan ("Callahan") and her children, lived with Callahan's mother, Molly Quarles ("Quarles"). Quarles owned an above-ground pool, which was located in her back yard. There was a chain-link fence around Quarles' yard and a privacy fence which was "way past head level" around the pool itself. A.W. lived next door to the Callahans. On 11 January 2007, the juveniles, both eight-year-old second graders, and two other children, one in the third grade and one in the fourth grade, were playing on a trampoline in A.W.'s yard while Callahan's children were playing on a trampoline in their own yard. One of Callahan's sons testified, and the juveniles denied, that he saw the juveniles throw bricks into their pool. The juveniles testified, and Callahan's son denied, that the Callahan children called them names and threw "stuff" at them. One of the children from A.W.'s yard testified that the "stuff" the Callahans threw in their yard, "we threw it back over there."
At approximately 4:30 p.m. Callahan's children came inside and one of them spoke to her about the pool. Callahan went outside to check the situation. She encountered S.B., one of the children who had been playing next door, who told her, "Ms. Rose, I did not throw anything in the swimming pool but a bicycle rim." When Callahan looked in the pool, she saw a bicycle rim and four or five bricks. She also noticed that the pool's liner was torn in several places. Damage to the liner was estimated at $750 to $900. When she had looked at the pool the previous evening, there had been no damage to the liner. The liner had been patched the previous summer "because of the same stuff going on before, but [the Callahans] did not press any charges."
The State brought juvenile petitions against all four children who had been playing in A.W.'s yard, alleging injury to real property. At the beginning of the hearing held 6 March 2007, the State moved to amend the charges in the petitions to allege injury to personal property. The motion was allowed, and all parties were given an opportunity to discuss their cases in light of the amended petitions. All four juveniles were found to be delinquent and the trial court imposed probation of up to six months or until such time as each paid restitution in the amount of $150 each, such that each juvenile's probationary period would terminate upon the payment of $150. The juveniles appeal.
The juveniles first assign error to the trial court's granting of the State's motion to amend the juvenile petitions. Pursuant to North Carolina General Statutes, section 7B-2400, "[t]he court may permit a petition to be amended when the amendment does not change the nature of the offense alleged. If a motion to amend is allowed, the juvenile shall be given a reasonable opportunity to prepare a defense to the amended allegations." N.C. Gen. Stat. § 7B-2400 (2005). A delinquency petition may be amended "only if the amended petition does not charge the juvenile with a different offense." In re Davis, 114 N.C. App. 253, 255, 441 S.E.2d 696, 698 (1994) (construing former section 7A-627, now section 7B-2400). Permitting such an amendment is "within the discretionary power of the district court judge." In re Jones, 279 N.C. 616, 618, 184 S.E.2d 267, 268 (1971). "An appellate court should affirm a discretionary decision by the trial court that is supported by the record, and reverse only where the decision is manifestly unsupported by reason and so arbitrary that it could not have been the result of a reasoned decision." State v. Morgan, 359 N.C. 131, 148-49, 604 S.E.2d 886, 897 (2004), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005) (citations and quotation marks omitted).
Originally, both delinquency petitions alleged injury to real property "in that . . . the juvenile did unlawfully, wantonly and willfully damage, injure and destroy real property" "by throwing objects in the pool causing the pool liner to tear." The amendments changed the word "real" to the word "personal" such that the amended petitions read: "in that . . . the juvenile did unlawfully, wantonly and willfully damage, injure and destroy personal property" "by throwing objects in the pool causing the pool liner to tear."
The original petitions charged the juveniles with violation of North Carolina General Statutes, section 14-127 which provides: "If any person shall willfully and wantonly damage, injure or destroy any real property whatsoever, either of a public or private nature, he shall be guilty of a Class 1 misdemeanor." N.C. Gen. Stat. § 14-127 (2005). Injury to personal property is governed by North Carolina General Statutes, section 14-160, which provides in pertinent part:
(a) If any person shall wantonly and willfully injure the personal property of another he shall be guilty of a Class 2 misdemeanor.
(b) Notwithstanding the provisions of subsection (a), if any person shall wantonly and willfully injure the personal property of another, causing damage in an amount in excess of two hundred dollars ($ 200.00), he shall be guilty of a Class 1 misdemeanor.
N.C. Gen. Stat. § 14-160 (2005). In Davis, this Court addressed whether a delinquency petition alleging violation of North Carolina General Statutes, section 14-59 properly was amended to allege violation of North Carolina General Statutes, section 14-66. Davis held that section 14-66 prohibiting setting fire to personal property was not a lesser included offense of section 14-59 prohibiting setting fire to a public building. Davis, 114 N.C. App. at 255, 441 S.E.2d at 698. Therefore, the amendment charged the juvenile with a different offense and was improper. Id. at 256, 441 S.E.2d at 698. An offense is a lesser offense if all of its elements are included in the greater offense charged. See State v. Aiken, 286 N.C. 202, 205, 209 S.E.2d 763, 765 (1974).
Both statutes in the case sub judice require willful or wanton conduct. However, section 14-160 requires the conduct "injure or destroy real property[,]" while section 14-127 requires the conduct "injure the personal property of another[.]" (Emphasis added). Therefore, injury to personal property is not a lesser included offense of injury to real property. Here, as in Davis, the amendment charged the juveniles with a different offense and was allowed improperly.
Because jurisdiction over the subject matter of a proceeding "cannot be conferred upon a court by consent, waiver, or estoppel[,]" In re Peoples, 296 N.C. 109, 144, 250 S.E.2d 890, 910 (1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979), we vacate the order of the trial court. As this disposes of the appeal, we do not address the juveniles' remaining assignments of error.
Vacated.
Judges TYSON and ARROWOOD concur.
Report per Rule 30(e).