In the Matter of: Matasich
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA01-1053 NORTH CAROLINA COURT OF APPEALS Filed: 7 May 2002 IN THE MATTER OF: Pender County No. 99 J 61 NICHOLAS MATASICH Appeal by juvenile from adjudication and disposition orders entered 16 April 2001 by Judge Elton G. Tucker in Pender County District Court. Heard in the Court of Appeals 8 April 2002. Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State. R. Kent Harrell for the respondent-appellant. TYSON, Judge. Nicholas Matasich ( respondent ) was charged on 22 March 2001 in a juvenile petition with violation of N.C. Gen. Stat. ยง 14277.1, communicating threats. The matter was heard on 16 April 2001. The State presented evidence at the hearing which tended to show the following: The respondent was a thirteen-year old student at Topsail Middle School. He is classified as B.E.D., which means he is behaviorally and emotionally handicapped, and has been placed in a special classroom known as the resource class. On 14 February -22001, while in class, respondent suddenly blurted out Bang, bang, bang, I m going to shoot you and you and you and you. also stated I ll blow up the school. Respondent According to respondent s teacher, Joyce Bowman ( Bowman ), she did not believe respondent could carry out the threats, so she ignored him, and respondent was not punished for his outburst. Bowman explained that respondent has trouble controlling himself, but . . . he s B.E.D. and it s expected. However, two students mentioned the outburst to Sherry Broome ( Broome ), the school s principal, and Broome decided further action should be taken. On 16 April 2001, respondent was adjudicated a delinquent juvenile by reason of disorderly conduct. A disposition order was entered placing respondent on supervised probation for six months and ordering participate psychological him in to the complete Big evaluation and an Buddy comply Ethics & program, with Choices and all to class, undergo recommendations. Respondent appeals. Respondent argues that the trial court did not have the authority to adjudicate him delinquent by reason of disorderly conduct because he was not charged with the offense in the petition and it is not a lesser offense of the charge of communicating threats, the offense alleged in the petition. We agree. First, disorderly conduct is not a lesser included offense of communicating threats. See State v. Smith, 139 N.C. App. 209, 216, 533 S.E.2d 518, 521, appeal dismissed, 353 N.C. 277, 546 S.E.2d 391 (2000). Second, the offense of disorderly conduct was not alleged -3in the delinquency petition, and the petition was not amended to allege disorderly conduct. respondent delinquent Accordingly, the orders The trial court erred by adjudicating by of reason of disorderly adjudication and conduct. disposition are vacated. Respondent additionally argues that the trial court erred by denying his motion to dismiss for insufficiency of the evidence on the allegation of communicating threats. However, the trial court did not adjudicate respondent delinquent by communicating threats, so respondent s argument is moot. Vacated. Judges GREENE and HUDSON concur. Report per Rule 30(e).
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