In re: D.W.L.B.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-163

Filed: 6 August 2019 Jackson County, No. 18 JB 25 In the Matter of D.W.L.B.

Appeal by Defendant from orders entered 11 May 2018 and 8 June 2018 by Judge Richard Walker in Jackson County District Court. Heard in the Court of Appeals 4 June 2019.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Tiffany Lucas, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C. Katz, for the Defendant.

DILLON, Judge.

Defendant D.W.L.B. (“Dexter”),¹ a juvenile, appeals from the trial court’s orders adjudicating him delinquent and entering a Level 1 disposition. After careful review, we vacate and remand for further proceedings, as explained in the Conclusion section of this opinion.

I. Background

Dexter is an elementary school student in Sylva. On 11 April 2018, a janitor at Dexter’s school cleaned certain graffiti from a stall in a boy’s bathroom. About ten

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Opinion of the Court minutes later, while standing in a hallway, the janitor observed a student lean out of that bathroom, look around, and then quickly dart back into the bathroom. The janitor went inside the bathroom to investigate and found Dexter and another boy. Dexter was standing next to the hand dryer by the sinks. Dexter left the bathroom immediately. The janitor then discovered new graffiti, the words “BOMB INCOMING” written in black magic marker on the wall above the hand dryer.

The janitor reported the incident to the principal. Later that day, Dexter was called to the principal’s office. Dexter was found to be carrying a black magic marker in his pants pocket. The principal and two officers spoke with Dexter and his parents and viewed surveillance footage of the hallway outside the bathroom.

Based on this investigation, the officers filed a petition seeking a declaration that Dexter was a delinquent juvenile, alleging that Dexter violated Section 14-277.5 of our General Statutes, a Class H felony, by making a false report concerning mass violence on educational property. After a hearing on the matter, the trial court orally found that Dexter had violated Section 14-277.5 and entered a written order adjudicating Dexter delinquent, ordering a Level 1 disposition, and prescribing twelve (12) months of probation.

Defendant timely appealed.

II. Analysis

A. Sufficiency of the Petition

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Dexter argues that the trial court lacked jurisdiction over him because the delinquency petition did not sufficiently allege each element of the offense for which he was charged. For the following reasons, we conclude that the petition failed to allege the elements of a violation of Section 14-277.5. But we also conclude that the petition did allege the elements of Section 14-127.1, a Class 1 misdemeanor proscribing the vandalism of school property, and that therefore the trial court had jurisdiction in this matter.

We typically hold juvenile petitions to the same standards as adult criminal indictments, In re Griffin, 162 N.C. App. 487, 493, 592 S.E.2d 12, 16 (2004), and therefore review the sufficiency of a petition de novo as a question of law, see State v. White, ___ N.C. ___, ___, 827 S.E.2d 80, 82 (2019) (“The sufficiency of an indictment is a question of law reviewed de novo.”).

The petition in this case stated that Dexter:

did make a report by writing a note on the boy’s bathroom wall at [his] Elementary School stating, “bomb incoming”; that being an act of violence is going to occur on educational property, that being [his] Elementary School, a public school in Jackson County; knowing and having reason to know that the report is false. GS 14-277.5

Section 14-277.5 criminalizes the communication of any false report of mass violence to occur on educational property, expressly stating that:

A person who, by any means of communication to any person or groups of persons, makes a report, knowing or having reason to know the report is false, that an act of

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mass violence is going to occur on educational property or at a curricular or extracurricular activity sponsored by a school, is guilty of a Class H felony.

N.C. Gen. Stat. § 14-277.5(b) (2018) (emphasis added).

Dexter argues that the petition is defective because it fails to allege “an act of mass violence.” We disagree.

Certainly, a threat of “bomb incoming” could reasonably be construed as something that could cause mass violence, potentially causing permanent physical injury to two or more people. See N.C. Gen. Stat. § 14-277.5(a)(2) (defining “mass violence”). Nonetheless, we conclude that the petition otherwise fails to allege a violation of Section 14-277.5. Specifically, it fails to allege that Dexter was “ma[king] a report” when he wrote the graffiti. We so conclude for two independent reasons.

First, we so conclude because the petition does not allege that Dexter directed his “bomb incoming” graffiti message to anyone in particular or that anyone in particular actually saw it. Indeed, the essence of a Section 14-277.5 violation is not so much uttering or writing a statement, but rather making a report of the statement to someone else.² By way of illustration, if Dexter had written the “BOMB INCOMING” message and then immediately erased it, he would not be guilty of

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Opinion of the Court

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Opinion of the Court actual threat that a bomb was incoming to the school. As explained below, such behavior could constitute a crime, but not a Class H felony.

We conclude, however, that the petition does properly assert that Dexter committed the crime of “graffiti vandalism,” as codified in Section 14-127.1 of our General Statutes. According to Section 14-127.1, anyone who “unlawfully write[s] or scribble[s] on . . . the walls of [] any real property, whether public or private,” is guilty of a Class 1 misdemeanor. N.C. Gen. Stat. § 14-127.1(a), (b) (2018). The language of the petition sufficiently alleges that Dexter wrote graffiti on a wall of a public school. See White, ___ N.C. at ___, 827 S.E.2d at 82 (stating the purpose of an indictment is to put the defendant on reasonable notice of the crime being charged so that he or she may prepare a defense against the acts that are alleged). And a petition which alleges facts constituting a Class 1 misdemeanor confers the trial court with jurisdiction to conduct a delinquency hearing, and, if it finds the allegations credible, to order a Level 1 disposition, as the trial court did in this case. See N.C. Gen. Stat. § 7B-2508 (2018). Specifically, graffiti vandalism under Section 14-127.1, as a Class 1 misdemeanor, is a “minor” offense, for which a juvenile with a low delinquency history must receive a Level 1 disposition. Id.

B. Sufficiency of the Evidence

Dexter also contends that the trial court erred by denying his motion to dismiss for an insufficiency of the evidence.

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In reviewing a motion to dismiss, this 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. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980); In re Heil, 145 N.C. App. 24, 28, 550 S.E.2d 815, 819 (2001) (citing Powell and applying this standard in a juvenile case). We review a motion to dismiss de novo. Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013).

While we have concluded that the particular elements of Section 14-277.5 are not appropriate in this case, Dexter argues that the evidence was insufficient because it failed to show that he was the perpetrator of the offense alleged – something the State must also prove with respect to a charge of graffiti vandalism. And we conclude that the evidence was sufficient to show that Dexter was the individual who wrote on the bathroom walls.

The evidence before the trial court showed that approximately ten minutes elapsed between when the janitor left the bathroom after cleaning graffiti and when he returned to find the new graffiti scrawled above the dryer. During this time, surveillance video showed a total of ten to twelve (12) students enter and leave the bathroom. Dexter was the last individual to leave the restroom, and he did so quickly after the janitor discovered him standing beside the dryer. When asked about the marking, Dexter stated that he knew it was there and intended to report it, but failed

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Opinion of the Court to do so and could not say why he decided not to report it. Finally, when asked to empty his pockets, Dexter produced a black magic marker.

This evidence, though circumstantial, allows a reasonable inference that Dexter wrote the graffiti. See State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 919 (1993). Upon reviewing the evidence, it is not this Court’s place to weigh the evidence, but only to determine if the evidence sufficiently supported the adjudication. State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000). We hold that the evidence was sufficient to show that Dexter wrote the graffiti on the bathroom wall.

C. Written Findings

Lastly, Dexter argues, and the State concedes, that both the trial court’s adjudication order and its disposition order each failed to make the required written findings of fact. We agree that the trial court so failed in two regards.

First, the trial court failed to make required written findings that Dexter wrote the graffiti. Though the adjudication order includes a blank space for facts proven beyond a reasonable doubt, the trial court left this space blank and made no written findings of fact at all. Section 7B-2411 of our General Statutes states that “[i]f the court finds that the allegations in the petition have been proved [beyond a reasonable doubt], the court shall so state in a written order of adjudication[.]” N.C. Gen. Stat. § 7B-2411 (2018). And our Court has consistently interpreted Section 7B-2411 to require the trial court to state in writing, at a minimum, “that the allegations in the

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Opinion of the Court petition have been proved beyond a reasonable doubt.” In re J.V.J., 209 N.C. App. 737, 740, 707 S.E.2d 636, 638 (2011); see also In re J.J., Jr., 216 N.C. App. 366, 372, 717 S.E.2d 59, 64 (2011) (vacating and remanding adjudication order where “the trial court failed to use the space and made no written findings at all”).

Second, the trial court failed to make written findings setting forth the factors it considered in selecting an appropriate disposition. Section 7B-2501(c) sets out enumerated factors that the trial court must consider in selecting an appropriate disposition for an adjudicated juvenile. N.C. Gen. Stat. § 7B-2501(c) (2018). And “[t]he dispositional order shall be in writing and shall contain appropriate findings of fact and conclusions of law.” N.C. Gen. Stat. § 7B-2512(a) (2018). Our Court has also consistently held “that the trial court is required to make findings demonstrating that it considered the [Section 7B-2501(c)] factors in a dispositional order entered in a juvenile delinquency matter.” In re V.M., 211 N.C. App. 389, 391-92, 712 S.E.2d 213, 215 (2011).

Accordingly, we vacate both the adjudication order and disposition order and remand to the trial court for entry of new orders including the required, written findings of fact.

III. Conclusion

We conclude that the allegations in the petition in this case were not sufficient to allege a violation of Section 14-277.5, a Class H felony, but that the allegations in

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Opinion of the Court the petition were sufficient to allege a violation of Section 14-127.1, a Class 1 misdemeanor. Accordingly, we conclude that the petition was sufficient to confer jurisdiction on the trial court.

We conclude, however, that the trial court erred by failing to make written findings concerning Dexter’s behavior as alleged in the petition or concerning the factors it considered when ordering its disposition.

We therefore vacate the trial court’s order and remand the matter for the entry of a new order. The trial court may base its new order on the evidence offered at the prior hearing; or the trial court may, in its discretion, take additional evidence. If the trial court finds that Dexter wrote the graffiti in question, the trial court may enter a disposition order based on a finding that Dexter violated Section 14-127.1, a Class 1 misdemeanor, but may not base any disposition on a finding that Dexter violated Section 14-277.5, a Class H felony.

VACATED AND REMANDED.

Chief Judge MCGEE and Judge ZACHARY concur.

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Footnotes

[1] We use a pseudonym for ease of reading and to protect the identity of the juvenile. N.C. R. App. P. 42.

[2] We note that the petition recites that Dexter did “make a report,” but then the petition described exactly what he did. The mere fact that the petition states that he made a report does not cure the fact that the allegation itself does not constitute a report. Certainly, a petition that alleged that “Defendant made a report by dreaming about making a bomb threat to his principal” would be determined to be defective, notwithstanding that it stated that a report was made. -4- making a report as described in Section 14-277.5. But the petition in this case, if held valid, would serve to initiate criminal proceedings for such behavior all the same. Second, and alternatively, we so conclude because it would not be reasonable for a person seeing the graffiti on the bathroom wall to construe said graffiti as a report of a credible threat. Indeed, a visitor to the bathroom seeing the graffiti would not know when the graffiti was written. We note that our research has not revealed any case law or General Assembly official comment indicating what type of conduct constitutes the “mak[ing of] a report” within the meaning of Section 14-277.5. We construe statutory language to proscribe as a Class H felony under this Section only credible reports, that is, those that a reasonable person would believe could represent a threat. Again, by way of illustration, if a person calls in a threat that “Martians will be invading the school with heat rays this afternoon,” no reasonable person would believe that she was in danger of imminent death by Martian invasion. Such a phone threat might be a crime, such as a Class 2 misdemeanor under Section 14-196(a), but we do not believe that the General Assembly contemplated criminalizing such behavior as a Class H felony. See N.C. Gen. Stat. § 14-196(a) (2018). In the same respect, we conclude that no one would reasonably believe that the words “BOMB INCOMING,” written in a bathroom at some unknown time in the past and obviously by an elementary-school-aged student, represented a report of an -5-