In The Matter Of: R.P

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-370 NORTH CAROLINA COURT OF APPEALS Filed: 1 November 2011 IN THE MATTER OF: R.P. Durham County No. 09 JB 58 Appeal by defendant from judgment entered 10 August 2010 by Judge Marcia H. Morey in Durham County District Court. Heard in the Court of Appeals 12 October 2011. Attorney General Roy Cooper, by Assistant Attorney General LaToya B. Powell, for the State. Morrow Porter Vermitsky & Fowler, by Benjamin D. Porter, for defendant-appellant. STEELMAN, Judge. Where we are unable to discern whether the trial court considered defendant s age in determining whether he was in custody for purposes of its Miranda and N.C. Gen. Stat. § 7B2101 analysis, this case is remanded to the trial court for entry of a conclusions written of law. order containing Possession of findings eight of Diazepam fact and pills, schedule IV controlled substance, is a Class 1 misdemeanor. a -2- I. Factual and Procedural Background On 15 March 2010, Deputy J.W. Henderson (Deputy Henderson) of the Durham County Sheriff s Office was assigned to Northern Durham High School as the school resource officer. That day, during a class change, Deputy Henderson observed R.P., a minor juvenile, (defendant) engage in a hand-to-hand transaction with a female student. Deputy Henderson was 25 to 30 feet away from the students when he observed defendant reach into his pocket and pull something out like he was trying to conceal it. The female student stuck her hand close to defendant and he handed the item to her. was exchanged. Deputy Henderson was unable to identify what However, based on his training and experience, Deputy Henderson believed it to be a drug transaction. Deputy Henderson requested assistance from the assistant principal who was standing inside the cafeteria area fifteen to twenty feet from Deputy Henderson. Deputy Henderson asked the assistant principal to detain the female student and he would get defendant. Deputy Henderson entered defendant s classroom and advised defendant that he needed to speak with him. Deputy Henderson stated that he had observed what had transpired in the commons area of the school and asked defendant what he handed -3the student. Defendant responded that he had given the female student a cigarette. Deputy Henderson also asked defendant if he had anything illegal on his person. that he had cigarettes. Defendant responded Deputy Henderson asked if there was anything else illegal on his person that [he] needed to know about. Defendant stated, [Y]es, I have pills on me. Defendant prescription further for the stated pills someone in his neighborhood. that and that he did he not received have them a from Defendant then pulled eight pills out of his pocket, which were located in a black velvet type bag and Defendant stated was that taken he to believed the front the pills were administrative Oxycodone. office, and Deputy Henderson advised defendant and his mother that he would be filing a juvenile petition. On 17 March 2010, a juvenile petition was filed against defendant for possession with intent to sell Oxycodone, a schedule II controlled substance. subsequently controlled amended, substance without was objection, eight Schedule IV controlled substances. to Diazepam and deliver The petition was reflect pills, that the which are On 22 June 2010, defendant filed a motion to suppress his statements to Deputy Henderson and the physical evidence seized from his person on the basis -4that they were obtained as a result of a custodial interrogation, without defendant first having been advised of his Miranda rights. On 10 August 2010, a hearing was held and the trial court denied defendant s defendant Henderson. was motion not in to suppress custody nor on the basis interrogated by that Deputy At the close of the evidence, defense counsel made a motion to dismiss the charge of possession with intent to sell and deliver establish adjudicated because simple the evidence possession. defendant The delinquent schedule IV controlled substance. Level 2 disposition order. confinement placed on an defendant only trial of sufficient court felony agreed possession to and of a The trial court entered a The trial court imposed level 2 intermittent on was supervised basis for up probation for to 14 12 days months and upon several conditions. Defendant appeals. II. Motion to Suppress In his first argument, defendant contends that the trial court erred in denying his motion to suppress. findings of fact and conclusions of law. We remand for -5In addition to the Fifth Amendment protections of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), juveniles are also afforded protection by the statutory provisions set forth in N.C. Gen. Stat. § 7B-2101(a): (a) Any juvenile in custody must be advised prior to questioning: (1) That the juvenile remain silent; has a right to (2) That any statement the juvenile does make can be and may be used against the juvenile; (3) That the juvenile has a right to have a parent, guardian, or custodian present during questioning; and (4) That the juvenile has a right to consult with an attorney and that one will be appointed for the juvenile if the juvenile is not represented and wants representation. N.C. Gen. Stat. § 7B-2101(a) (2009). However, it is well-established that Miranda warnings and the protections of N.C. Gen. Stat. § 7B-2101 apply only if the juvenile is in custody. S.E.2d 342, 344 (2009) In re W.R., 363 N.C. 244, 247, 675 (citation omitted). The test for determining if a person is in custody is whether, considering all the circumstances, a reasonable person would not have thought that he was free to leave because he had been formally -6arrested or had had his freedom of movement restrained to the degree associated with a formal arrest. Id. at 248, 675 S.E.2d at 344 (citation omitted). Our appellate courts have recognized the unique circumstances present in a school environment for purposes of conducting a custodial interrogation analysis. See In re J.D.B., 363 N.C. 664, 669-70, 686 S.E.2d 135, 138 (2009) ( The uniquely structured nature of the school environment inherently deprives students of some freedom of action. student in the school setting to be deemed . . . in For a custody, law enforcement must subject the student to restraint on freedom of movement that characteristic goes of well the beyond school the limitations environment in that are general. (quotations omitted)), rev d and remanded on other grounds by ___ U.S. ___, 180 L. Ed. 2d 310 (2011); see also In re K.D.L., ___ N.C. App. ___, ___, 700 S.E.2d 766, 771 (2010) ( The schoolhouse presents a unique environment for the purpose of applying the custodial interrogation analysis. recognized freedom of that schoolchildren action (citation omitted)). when they inherently enter the shed Our courts have some of schoolhouse their door. -7In In re J.D.B., our Supreme Court declined to consider the juvenile s age and experience as part of its inquiry in determining whether the juvenile was in custody for purposes of Miranda and N.C. Gen. Stat. § 7B-2101, and reiterated that the appropriate test to person standard. November 2010, be applied was an objective reasonable 363 N.C. at 671, 686 S.E.2d at 139. the United States Supreme Court On 1 granted certiorari to determine whether the Miranda custody analysis includes consideration of a juvenile suspect s age. J.D.B. v. North Carolina, ___ U.S. at ___, 180 L. Ed. 2d at 321. The United States Supreme Court held: Reviewing the question de novo today, we hold that so long as the child s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test. This is not to say that a child s age will be a determinative, or even a significant, factor in every case. It is, however, a reality that courts cannot simply ignore. Id. at ___, 180 L. Ed. 2d at 326-27 (internal citations and footnote omitted). remanded the question remains The United States Supreme Court reversed and case interrogated him. with whether the following J.D.B. was in instructions: custody when The police We remand for the state courts to address -8that question, this time taking account of all of the relevant circumstances of the interrogation, including J.D.B. s age at the time. Id. at ___, 180 L. Ed. 2d at 329. Thus, the trial court is required to consider the juvenile s age at the time of questioning in determining whether they were in custody. In the instant case, the trial court did not enunciate specific order. findings of fact in open court or enter a written At the conclusion of the suppression hearing, the trial court stated: Well, based on what I ve heard in the officer s testimony I m not convinced that the gentleman was in custody at the time. It sounds as if they were walking down the hallway. I don t find that he has been interrogated, just asked a couple of questions. So, the motion to suppress for those reasons is denied. Our Supreme Court has stated the following regarding the trial court s duty to make findings of fact after a suppression hearing: When the competency of evidence is challenged and the trial judge conducts a voir dire to determine admissibility, the general rule is that he should make findings of fact to show the bases of his ruling. If there is a material conflict in the evidence on voir dire, he must do so in order to resolve the conflict. If there is no material conflict in the evidence on voir dire, it is not error to admit the challenged evidence without making specific -9findings of fact, although it is always the better practice to find all facts upon which the admissibility of the evidence depends. In that event, the necessary findings are implied from the admission of the challenged evidence. State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980) (internal citations omitted). In the instant case, there was no material conflict in the evidence on whether voir the dire. trial However, court we considered are the unable to juvenile s discern age in accordance with the United States Supreme Court s mandate in In re J.D.B. Thus, this issue must be remanded to the trial court for entry of a written order containing findings of fact and conclusions of law, specifically addressing the concerns set forth in In re J.D.B. III. Felonious Possession of a Controlled Substance In his second argument, defendant contends that the trial court erroneously adjudicated him to be delinquent of felonious possession of a controlled substance supported misdemeanor possession. when the evidence only The State concedes error, and we agree. Diazepam is a Schedule IV controlled substance. Stat. 90-92(a)(1) (2009). N.C. Gen. It is unlawful for any person to possess a controlled substance. N.C. Gen. Stat. § 90-95(a)(3). -10N.C. Gen. Stat. § 90-95(d) provides, in pertinent part: (d) Except as provided in subsections (h) and (i) of this section, any person who violates G.S. 90-95(a)(3) with respect to: . . . . (2) A controlled substance classified in Schedule II, III, or IV shall be guilty of a Class 1 misdemeanor. If the controlled substance exceeds four tablets, capsules, or other dosage units or equivalent quantity of hydromorphone or if the quantity of the controlled substance, or combination of the controlled substances, exceeds one hundred tablets, capsules or other dosage units, or equivalent quantity, the violation shall be punishable as a Class I felony. . . . (Emphasis added.) In the instant case, the trial court adjudicated defendant delinquent because of his possession of eight Diazepam pills, a schedule IV controlled substance, but erroneously classified the offense as a Class I felony. N.C. Gen. Stat. § 90-95(d)(2) clearly dictates that possession of a schedule IV controlled substance is a Class 1 misdemeanor. See also State v. Sanders, 171 N.C. App. 46, 50, 613 S.E.2d 708, 711, aff d per curiam, 360 N.C. 170, 622 S.E.2d 492 (2005). substance defendant possessed The quantity of the controlled did not exceed one hundred tablets, capsules, or other dosage units, which is required to elevate the offense to a Class I felony. -11REMANDED. Judges ERVIN and MCCULLOUGH concur. Report per Rule 30(e).

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