State v. Vietto

COPELAND, Justice. The defendant contends the trial court erred in denying her motion for a directed verdict of not guilty at the close of all of the [12] evidence. We agree; therefore, the decision of the Court of Appeals must be reversed. The trial judge correctly charged the jury that to convict the defendant of violating G.S. 115-166, the State must prove beyond a reasonable doubt that for the time period specified in the indictment, the defendant caused her child not to attend a public school or a nonpublic one that had been approved by the State Board of Education,2 The State’s proof that Learning Foundations was not an approved school within the meaning of G.S. 115-166 was insufficient to take this case to the jury. The only evidence with any probative force relating to Learning Foundations’ status came from State’s witness Dr. Heyward Bellamy, Superintendent of New Hanover County Schools. He attempted to show that Learning Foundations had not been approved by the State Board of Education; however, he obviously had no real basis for his testimony. The witness took no part in the approval of nonpublic schools; under G.S. 115-166, the State Board of Education has the sole authority to do this. He stated that he had never checked to see if Learning Foundations was on the official list of approved schools, and he had not talked with anyone at that institution about its status. Although Dr. Bellamy recited certain requirements that must be met before a school is approved, he could not know whether Learning Foundations complied with these standards at the time in question because he had not visited that institution for ten or twelve years. In essence, the witness’ whole testimony was based on the fact that “[s]o far as I know they [Learning Foundations] don’t claim to be a school and have not filed the request with the State [Board of Education].” (Emphasis added.) “When a motion is made for a judgment of nonsuit or for a directed verdict of not guilty, the trial judge must determine whether there is substantial evidence of every essential element of the offense.” State v. Davis, 246 N.C. 73, 76, 97 S.E. 2d 444, 446 [13] (1957) (Emphasis added.) See also State v. Stewart, 292 N.C. 219, 232 S.E. 2d 443 (1977). When ruling on such a motion, the judge must consider both competent and incompetent evidence that has been admitted at trial. See, e.g., State v. McKinney, 288 N.C. 113, 215 S.E. 2d 578 (1975). However, even when we consider all the evidence at this defendant’s trial in the light most favorable to the State, State v. Jones, 280 N.C. 60, 184 S.E. 2d 862 (1971), we cannot find that the inherently speculative testimony of Dr. Bellamy constituted substantial evidence that Learning Foundations was not a nonpublic school approved by the State Board of Education. Consequently, defendant’s motion for a directed verdict of not guilty should have been granted. For the foregoing reason, we reverse the decision of the Court of Appeals and remand the case to that court with instructions to further remand it to the Superior Court of New Hanover County for entry of judgment dismissing the charge as of nonsuit. Reversed and remanded. Footnotes [2] Apparently the State did not rely on G.S. 115-170 which states in pertinent part: "The reports of unlawful absence required to be made by teachers and principals to the attendance counselor shall, in his hands, in case of any prosecution, constitute prima facie evidence of the violation of this Article and the burden of proof shall be upon the defendant to show the lawful attendance of the child or children upon an authorized school." Although neither party to this lawsuit raised an issue concerning this provision, we note that it appears to violate the mandates laid down by the United States Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508, 95 S.Ct. 1881 (1975).