In re J.D.G. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-117
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
IN THE MATTER OF:
Randolph County
No. 13 JB 23
J.D.G.
Appeal by juvenile from adjudication and disposition order
entered 22 August 2013 by Judge Don W. Creed, Jr., in Randolph
County District Court. Heard in the Court of Appeals 4 August
2014.
Attorney General Roy Cooper, by Associate Attorney General
Laura Askins, for the State.
Peter Wood for respondent-appellant.
ERVIN, Judge.
Juvenile J.D.G.1 appeals from an order adjudicating him to
be a delinquent juvenile based upon a determination that he had
committed the offense of disorderly conduct and placing him on
juvenile probation. On appeal, Jerome contends that the failure
of his trial counsel to renew his motion to have the juvenile
1
J.D.G. will be referred to throughout the remainder of this
opinion as Jerome, a pseudonym used for ease of reading and to
protect the juvenile’s privacy.
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petition alleging that he should be adjudicated a delinquent
juvenile for committing the offense of disorderly conduct
dismissed for insufficiency of the evidence constituted
ineffective assistance of counsel. After careful consideration
of Jerome’s challenge to the trial court’s orders in light of
the record and the applicable law, we conclude that the trial
court’s orders should be affirmed.
I. Factual Background
A. Substantive Facts
1. State’s Evidence
At approximately 8:50 p.m. on 15 December 2012, Officer
Robert Coble, the assistant security director at the Randolph
Mall, observed Jerome outside the main entrance of the mall. At
that time, Jerome was pacing back and forth and talking in a
very loud voice near several mall patrons. As he paced, Jerome
seemed to be very agitated and could be heard saying, “don’t be
touching me.” At least one family that had been walking toward
the mall had to take a different route because Jerome “was
creating such a scene.”
As a result of the fact that Jerome failed to calm down in
response to a request from Officer Coble that he do so, Officer
Coble asked two police officers who were assigned to the mall to
escort Jerome to the mall’s security office. Jerome yelled “F--
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- you” several times at Officer Coble and started to walk away
as the officers approached him. At that time, the officers
attempted to obtain contact information for his parents from
Jerome. After Jerome “juke[d]” towards one of the officers in a
“very provocative action[,]” Jerome was handcuffed and placed
under arrest.
2. Juvenile’s Evidence
Jerome was waiting for his ride home from the mall and did
not intend to provoke the mall’s security guards. Instead,
Jerome walked away from the mall because his ride was waiting
for him at a nearby fast food restaurant.
B. Procedural History
On 8 February 2013, the State filed juvenile petitions
alleging that Jerome should be adjudicated a delinquent juvenile
for committing the offenses of disorderly conduct and resisting,
delaying, and obstructing a public officer. On 26 March 2013,
the 8 February 2013 petitions were dismissed by the trial court
at the State’s request.
On 12 April 2013, the State filed juvenile petitions
alleging that Jerome should be adjudicated a delinquent juvenile
on the grounds that he had committed the offenses of disorderly
conduct and resisting, delaying, and obstructing a public
officer. The 12 April 2013 petitions came on for hearing before
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the trial court at the 5 August 2013 juvenile session of the
Randolph County District Court. Although Jerome’s trial counsel
moved to dismiss the petitions for insufficiency of the evidence
at the conclusion of the State’s case, he failed to renew the
dismissal motion at the close of all of the evidence. At the
conclusion of the adjudication hearing, the trial court
determined that Jerome should be adjudicated to be a delinquent
juvenile for committing the offense of disorderly conduct,
determined that Jerome should not be adjudicated to be a
delinquent juvenile for committing the offense of resisting,
delaying, and obstructing an officer, and entered an order
placing Jerome on juvenile probation for a period of nine months
on the condition that he abide by the rules set by his court
counselor and his parents, including compliance with a curfew;
attend school on a regular basis; maintain passing grades in all
of his classes; report to the Juvenile Day Reporting Center in
the event that he was expelled or suspended from school; refrain
from possessing any controlled substances, alcoholic beverages,
or firearm or explosive devices; submit to warrantless searches
and seizures; and obtain a mental health assessment and complete
any recommended treatment. Jerome noted an appeal to this Court
from the trial court’s adjudication and disposition orders.
II. Substantive Legal Analysis
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In his sole challenge to the trial court’s orders, Jerome
argues that he received ineffective assistance from his trial
counsel. More specifically, Jerome contends that his trial
counsel provided him with deficient representation by failing to
renew his motion to dismiss for insufficiency of the evidence at
the close of all of the evidence and that, had his trial counsel
made such a renewed dismissal motion, the disorderly conduct
charge would have been dismissed either at trial or on appeal.
Jerome is not entitled to relief from the trial court’s orders
on the basis of this contention.
“To prevail on a claim of ineffective assistance of
counsel, a [juvenile] must first show that his counsel’s
performance was deficient and then that counsel’s deficient
performance prejudiced his defense.” State v. Allen, 360 N.C.
297, 316, 626 S.E.2d 271, 286, cert. denied, 549 U.S. 867, 127
S. Ct. 164, 166 L. Ed. 2d 116 (2006). “Deficient performance
may be established by showing that counsel’s representation fell
below an objective standard of reasonableness.” Id. (quotation
marks and citations omitted). “Generally, to establish
prejudice, a [juvenile] must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
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confidence in the outcome.” Id. (quotation marks and citations
omitted). “[I]f the evidence is sufficient to support a
conviction, the [juvenile] is not prejudiced by his counsel’s
failure to make a motion to dismiss at the close of all the
evidence.” State v. Fraley, 202 N.C. App. 457, 467, 688 S.E.2d
778, 786, disc. review denied, 364 N.C. 243, 698 S.E.2d 660(2010).
“Where the juvenile moves to dismiss, the . . . court must
determine whether there is substantial evidence (1) of each
essential element of the offense charged, . . . and (2) of [the
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 and
quotation marks omitted). “The evidence must be such that, when
it is viewed in the light most favorable to the State, it is
sufficient to raise more than a suspicion or possibility of the
respondent’s guilt.” In re Walker, 83 N.C. App. 46, 48, 348
S.E.2d 823, 824 (1986). As a result, in order to establish that
he is entitled to relief from the trial court’s order on
ineffective assistance of counsel grounds, Jerome must establish
that the record did not contain substantial evidence tending to
show that he had committed the offense of disorderly conduct.
According to N.C. Gen. Stat. § 14-288.4(a)(2):
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(a) Disorderly conduct is a public
disturbance intentionally caused by any
person who does any of the following:
. . . .
(2) Makes or uses any utterance,
gesture, display or abusive
language which is intended and
plainly likely to provoke violent
retaliation and thereby cause a
breach of the peace.
According to the record developed in the court below, Jerome
spoke using an elevated voice level as he paced outside the mall
entrance, yelled obscenities at the mall security officer, and
made threatening gestures toward police officers. Such evidence
is more than sufficient to support the trial court’s decision to
adjudicate Jerome to be a delinquent juvenile for committing the
offense of disorderly conduct. As a result, since any renewed
dismissal motion that Jerome’s trial counsel might have made for
the purpose of challenging the sufficiency of the evidence to
support a determination that Jerome had committed the offense of
disorderly conduct should have been denied, Jerome has not shown
that he was prejudiced by the failure of his trial counsel to
make a renewed dismissal motion at the conclusion of all of the
evidence.
III. Conclusion
Thus, for the reasons set forth above, Jerome’s challenge
to the trial court’s adjudication and disposition orders lacks
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merit. As a result, the trial court’s adjudication and
disposition orders should be, and hereby are, affirmed.
AFFIRMED.
Judges ROBERT C. HUNTER and STEPHENS concur.
Report per Rule 30(e).