In Re KTL

629 S.E.2d 152, 177 N.C. App. 365, 2006 N.C. App. LEXIS 965
CourtCourt of Appeals of North Carolina
DecidedMay 2, 2006
DocketCOA05-667
StatusPublished

This text of 629 S.E.2d 152 (In Re KTL) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re KTL, 629 S.E.2d 152, 177 N.C. App. 365, 2006 N.C. App. LEXIS 965 (N.C. Ct. App. 2006).

Opinion

629 S.E.2d 152 (2006)

In the Matter of K.T.L.

No. COA05-667.

Court of Appeals of North Carolina.

May 2, 2006.

Attorney General Roy A. Cooper, III, by Assistant Attorney General M. Lynne Weaver, for the State.

Sofie W. Hosford, Wilmington, for juvenile-appellant.

*154 JACKSON, Judge.

Malik Beverly ("Malik"), age three, was reported missing by his babysitter on 2 September 2004 shortly after 7:30 p.m. Malik, who was being cared for while his mother was at work, had been outside playing much of the afternoon with his older sister. The two had been seen playing around various homes in the trailer park, and at one point were seen pouring water from a bucket into an open septic tank in the yard of one of the trailers. This particular septic tank was damaged and did not have a proper cover. It usually was covered with a large piece of plywood with a rock on top of the plywood. K.T.L. ("juvenile"), who was then eight years old, lived in the same trailer park in which Malik and his sister were playing, and he was seen playing with the two children at about 6:50 p.m. that evening.

After a search of the trailer park, police and residents found Malik's body floating in the septic tank into which he previously had been seen pouring water with his sister. The septic tank had been covered by an eighteen pound piece of plywood, which had a thirty pound rock and bucket, containing about an inch of water, sitting atop the plywood. An autopsy determined that the cause of Malik's death was drowning. The autopsy revealed a bruise on the top of Malik's head which appeared to have resulted from a blunt force injury, and would not have been consistent with a fall. Malik's body also showed a scrape about two and one half inches long on the front of his stomach, which was indicative of his having been moved over a slightly rough surface, such as pavement or concrete.

On 3 September 2004, Dayquan Bazemore, a fifth grader at juvenile's school, was on juvenile's school bus when juvenile asked Dayquan if he had heard what happened the night before. Dayquan testified that juvenile stated that he and a little boy had been playing, and that after beginning to fight juvenile "slammed him in the road." Dayquan stated that juvenile then told him that juvenile "thought he was dead so I drug him over to the septic tank and threw him in." Dayquan testified that juvenile had a smile on his face while he was talking.

Monisha Holley, also a fifth grader, was on the same bus as Dayquan and juvenile on the morning of 3 September 2004. When she boarded the bus, she asked Dayquan and juvenile if they had heard what happened the night before. Juvenile responded "Yes," to which Dayquan asked juvenile why he had *155 done that to him, referring to the little boy. Juvenile told the two fifth graders that "I didn't do nothing to him, I was just beating him up." Dayquan asked juvenile "Well how did he die then?," to which juvenile replied, "Because I threw him in the septic tank." Monisha testified that shortly thereafter, she heard juvenile and Dayquan talking and that juvenile stated that it was funny when he threw him, referring to the little boy, into the septic tank. Monisha also stated that juvenile sometimes liked to brag to the other children, and that in the past he had threatened children on the school bus.

On 20 September 2004, the State issued a juvenile petition against juvenile, charging him with involuntary manslaughter in violation of North Carolina General Statutes, section 14-18. On 22 September 2004, the State called juvenile's case for a hearing, at which time juvenile and the State jointly moved that the hearing be closed. Following testimony from a detective and juvenile's mother, the trial court denied the parties' motions and ordered juvenile's hearing to be open to the public.

After three days of evidence, the trial court adjudicated juvenile delinquent on 3 November 2004, finding that he had committed the offense of involuntary manslaughter. Juvenile was ordered to remain in custody pending his dispositional hearing, so that he could receive a comprehensive evaluation of his needs. On 30 November 2004 the trial court heard evidence from both parties regarding disposition, and announced that it would issue its decision by written order to be entered on 21 December 2004. Juvenile was ordered to remain in secure custody pending the entry of the disposition order.

On 21 December 2004, the court entered its disposition order, and ordered that juvenile be placed in the custody of Bertie County Department of Social Services ("DSS") so that he could be placed in a Level III or IV residential treatment facility that provided 24-hour monitoring for a period not to exceed 90 days. The purpose of this placement was so that juvenile's emotional needs could be evaluated throughly, and so that the court could make a well-informed decision regarding juvenile's final disposition. Juvenile also was placed on intensive probation for one year. The court ordered the matter to be reviewed on 28 February 2005, at which time the court would be presented with the results of juvenile's evaluation, including recommendations as to treatment and placement necessary to meet juvenile's emotional needs. Juvenile appeals from both the adjudication and dispositional orders.

We begin by noting that juvenile asserts ten assignments of error in the record on appeal, however he presents arguments as to only four of the assignments of error in his brief. The remaining six assignments of error, for which no argument was presented, are therefore deemed abandoned. N.C. R.App. P. 28(b)(6) (2005).

In his first assignment of error, juvenile asserts the trial court erred in finding he was delinquent, based on the State's failure to present sufficient evidence that he committed the offense of involuntary manslaughter. In order to challenge the sufficiency of the evidence, a juvenile may make a motion to dismiss the petition at the close of the State's evidence during the adjudicatory hearing. In re Clapp, 137 N.C.App. 14, 19, 526 S.E.2d 689, 693 (2000); In re Davis, 126 N.C.App. 64, 65-66, 483 S.E.2d 440, 441 (1997). "However, if a defendant [or juvenile] fails to move to dismiss the action ... at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged." N.C. R.App. 10(b)(3) (2005); see also, In re Hartsock, 158 N.C.App. 287, 291, 580 S.E.2d 395, 398 (2003); In re Lineberry, 154 N.C.App. 246, 249, 572 S.E.2d 229, 232 (2002), cert. denied, 356 N.C. 672, 577 S.E.2d 624 (2003). In the instant case, juvenile failed to make a motion to dismiss the petition at the close of all evidence, thus waiving his right to challenge the sufficiency of the evidence against him. As juvenile has failed to preserve his right to appeal on this issue, this assignment of error is dismissed.

Juvenile next contends the trial court abused its discretion in denying his motion to close juvenile's delinquency hearing to the public. At juvenile's first appearance on 22 September 2004, both juvenile and the State *156 moved for the hearings to be closed to the public.

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Related

In Re Clapp
526 S.E.2d 689 (Court of Appeals of North Carolina, 2000)
State v. Hennis
372 S.E.2d 523 (Supreme Court of North Carolina, 1988)
In Re Hartsock
580 S.E.2d 395 (Court of Appeals of North Carolina, 2003)
State v. Wiggins
589 S.E.2d 402 (Court of Appeals of North Carolina, 2003)
In Re Potts
188 S.E.2d 643 (Court of Appeals of North Carolina, 1972)
Matter of Davis
483 S.E.2d 440 (Court of Appeals of North Carolina, 1997)
State v. Campbell
617 S.E.2d 1 (Supreme Court of North Carolina, 2005)
In Re Lineberry
572 S.E.2d 229 (Court of Appeals of North Carolina, 2002)

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Bluebook (online)
629 S.E.2d 152, 177 N.C. App. 365, 2006 N.C. App. LEXIS 965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ktl-ncctapp-2006.