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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
STATE OF NORTH CAROLINA
No. 03 CRS 24455
JEROME CANNON MCCOY
Appeal by defendant from judgment entered 15 September 2003 by
Judge Michael E. Helms in Guilford County Superior Court. Heard in
the Court of Appeals 20 October 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Margaret P. Eagles, for the State.
Appellate Defender Staples Huges, by Assistant Appellate
Defender, Matthew D. Wunsche, for defendant-appellant.
On 15 September 2003, defendant appeared before the Superior
Court of Guilford County, along with his court-appointed counsel,
Thomas Maddox, concerning motions defendant had filed pro se.
Defendant was in custody at the time of the hearing. When
defendant was leaving the courtroom following the hearing, he
stated to Julia Hejazi, the assistant district attorney, you're
going down. The trial judge found defendant to be in direct
contempt of court and sentenced him to thirty days in the county
jail. The order was reduced to writing and entered on 15 September
2003, with a copy delivered to defendant at the jail on 18
September 2003. Defendant gave notice of appeal on 13 October
2003. We first consider the State's motion to dismiss defendant's
appeal for failure to give notice of appeal within fourteen days
from the entry of the order holding him in contempt as required by
Rule 4(a)(2) of the North Carolina Rules of Appellate Procedure.
Defendant freely acknowledged that the notice of appeal was not
timely given. In a footnote to his Statement of Facts, defendant
states the following:
Defendant acknowledges that notice of appeal
was given outside of the 14-day period set by
N.C. Rule of Appellate Procedure 4(a)(2).
Defendant asserts, however, that the delay was
due to the denial of his constitutional and
statutory right to counsel and the summary
nature of the contempt proceeding, as
discussed in arguments I and II below. If
this Court does not recognize defendant's
notice of appeal, defendant respectfully
requests this Court consider this brief as a
Petition for a Writ of Certiorari and consider
the issues raised on their merits.
We note that when a defendant has not properly given notice of
appeal, this Court is without jurisdiction to hear the appeal. See
State v. McMillian, 101 N.C. App. 425, 427, 399 S.E.2d 410, 411
(1991). See also Sillery v. Sillery, ___ N.C. App. ___, ___, 606
S.E.2d 749, 751 (2005). Rule 27(c) of the Rules of Appellate
Procedure prohibits this Court from granting defendant an extension
of time to file his notice of appeal since compliance with the
requirements of Rule 4(a)(2) is jurisdictional and cannot simply be
ignored by this Court. See O'Neill v. Bank, 40 N.C. App. 227, 230,
252 S.E.2d 231, 233-34 (1979).
While this Court cannot hear defendant's direct appeal, it
does have the discretion to consider the matter by granting apetition for writ of certiorari. The writ of certiorari may be
issued in appropriate circumstances by either appellate court to
permit review of the judgments and orders of trial tribunals when
the right to prosecute an appeal has been lost by failure to take
timely action, . . . . N.C. R. App. P. 21(a). This rule goes on
to specify the contents of a petition for writ of certiorari:
The petition shall contain a statement of the
facts necessary to an understanding of the
issues presented by the application; a
statement of the reasons why the writ should
issue; and certified copies of the judgment,
order or opinion or parts of the record which
may be essential to an understanding of the
matters set forth in the petition. The
petition shall be verified by counsel or the
petitioner. Upon receipt of the prescribed
docket fee, the clerk will docket the
N.C. R. App. P. 21(c) (2005).
The footnote contained in appellant's brief clearly does not
meet the requirements set forth in Rule 21(c). The North Carolina
Rules of Appellate Procedure are mandatory and 'failure to follow
these rules will subject an appeal to dismissal.' Viar v. N.C.
Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 360 (2005).
In order to correct the deficiencies in defendant's purported
petition for writ of certiorari, we would have to invoke the
provisions of Rule 2 of the Rules of Appellate Procedure.
The authority granted in Rule 2 is discretionary. State v.
Owens, 160 N.C. App. 494, 498, 586 S.E.2d 519, 522 (2003) (citing
to N.C. R. App. P. 2). The provisions of Rule 21 are also
discretionary. State v. Strausser, ___ N.C. App. ___, ___, ___S.E.2d ___, ___ (2005) (citing State v. Grundler and State v.
Jelly, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959)).
We decline to exercise our discretion under Rule 2 to correct
the defects in defendant's purported petition for writ of
certiorari. In addition, we further decline to exercise our
discretion and deny defendant's purported petition for writ of
certiorari. It is not the role of the appellate courts . . . to
create an appeal for an appellant. Viar, 359 N.C. at 402, 610
S.E.2d at 361.
The State's motion to dismiss defendant's appeal is granted.
APPEAL DISMISSED; PETITION FOR WRIT OF CERTIORARI DENIED.
Judge CALABRIA concurs.
Judge GEER dissents.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
STATE OF NORTH CAROLINA
No. 03 CRS 24455
JEROME CANNON MCCOY,
GEER, Judge, dissenting.
Rule 2 of the Rules of Appellate Procedure provides that "[t]o
prevent manifest injustice to a party, or to expedite decision in
the public interest, either court of the appellate division may,
except as otherwise expressly provided by these rules, suspend or
vary the requirements or provisions of any of these rules in a case
pending before it upon application of a party or upon its own
initiative . . . ." I can conceive of no greater example of
"manifest injustice" than to allow a man to be imprisoned based
only on unsworn statements, including statements not made on the
record. Adding to the "manifest injustice" is the fact that during
the course of the proceedings below _ which certainly did not
amount to a formal hearing _ trial counsel stood mute. He said not
a word. To allow a man to be convicted based literally on no
competent evidence and without any representation by trial counsel
defines "manifest injustice."
I cannot join in the majority's decision to dismiss this
unquestionably meritorious appeal solely because appellate counsel
followed the not uncommon approach of requesting in a footnote thatthis Court treat the appeal as a petition for writ of certiorari.
While defendant is hardly sympathetic and his sentence is only 30
days, these facts cannot erase the trial court's departure from the
fundamental principles underlying our country's judicial system.
To put it bluntly: North Carolina does not administer justice in
this manner. I do not believe this Court should turn a blind eye
based on a less than two-week delay in the appeal from a defendant
who was effectively unrepresented by counsel.
Although the majority relies upon Viar v. N.C. Dep't of
Transp., 359 N.C. 400, 610 S.E.2d 360 (2005), I do not believe that
our Supreme Court intended in Viar to eviscerate Rule 2, especially
in criminal appeals. Since the Supreme Court has not amended the
Rules of Appellate Procedure to eliminate Rule 2, the Rule must
still exist to prevent "manifest injustice" or "to expedite
decision in the public interest." If Rule 2 is to have any
continuing meaning, it must be available in cases such as this one.
I would, therefore, deny the State's motion to dismiss, reverse the
trial court, and remand to have the trial court conduct contempt
proceedings in accordance with N.C. Gen. Stat. § 5A-15 (2003).
Defendant appeared with his appointed counsel at a hearing on
15 September 2003 to address motions that defendant had filed pro
in a criminal matter. After the trial court granted defendant's
request for additional time to prepare for a hearing on his
motions, defendant was led out of the courtroom. The assistant
district attorney then asked the court to "put on the record thatas the defendant walked out of the courtroom, he looked at me and
said you're going down and continued to mumble to me." Defense
counsel is reported as then saying, "I thought you were doing a
great job, Judge."
The judge immediately had defendant returned to the courtroom.
At this point, according to the transcript, the judge did not place
any witnesses under oath. No one testified; no evidence was
admitted. Instead, as soon as defendant was again before him, the
judge engaged defendant and the assistant district attorney in the
THE COURT: Mr. McCoy, I thought I'd give
you another opportunity to be heard. . . .
When you left the courtroom, the district
attorney said that while you were behind me
where I couldn't see you that you looked at
her and _ what did you say that he mouthed?
MS. HEJAZI [the assistant district
attorney]: I believe he said you're going
down. And he continued to make gestures with
his face and looking at me making comments.
THE COURT: You're going down. Now, this
is following on the heels of a motion that you
had made where you indicated he threatened
you, Madam District Attorney? Is that true?
Which motion was that?
MS. HEJAZI: The motion, Your Honor, that
THE COURT: I'm not sure that I ever saw
that language in the body.
MS. HEJAZI: Specifically to me was the
motion filed September 9. It's titled Motion
to Dismiss Frivolous Warrants. On the back
page, the last paragraph says Ms. Hejazi, I'm
willing to die and meet my creator defending
our great United States Constitution and the
rights that are guaranteed. Are you willingto die and go to hell to try _ trying to
mutilate and molest our great constitution?
. . . .
THE COURT: Mr. McCoy, I'm concerned _
that's not a direct threat. But it certainly
sounds threatening to me.
The judge then continued:
I'm thinking that you have reduced the dignity
of this Court and you turned this courtroom
into a ring, an arena for violence and
intimidation, and we just can't have that in
What do you _ what would you like to say
regarding whether or not I should hold you in
contempt for threatening this young lady as
you left the courtroom today in light of what
has gone on before?
THE DEFENDANT: Well, Your Honor, I didn't
threaten her for one _ I mean nobody else
seems to have heard it but her.
THE COURT: You didn't say it. You
mouthed it to her.
THE DEFENDANT: Did anybody else see me
mouth it to her?
THE COURT: Got two other, three other
defense attorneys. Jim Kimel on the front row
Except for Mr. Kimel, the record does not reveal the names of the
unidentified attorneys to whom the court was referring; nor does
the record indicate what they saw or heard. As the transcript does
not reflect any exchange that may have taken place between these
attorneys and the judge, I am unable to ascertain how the court
knew that they would corroborate the assistant district attorney. At no time did these three individuals testify or even make any
unsworn, recorded statements.
Following the judge's reference to Mr. Kimel and the other
unnamed attorneys, defendant's father asked to speak and stated
that he had not heard defendant say anything to the assistant
district attorney. The judge responded:
The question is not whether he verbally
or orally said something. I could have heard
it. I'm right here. We have four people here
who are willing to say or who have said that
they saw him mouth that threat to her.
. . . .
Anything else you want to say, Mr. McCoy,
. . . with regard to whether I should hold you
in contempt for threatening the prosecutor
while you were in open court?
THE DEFENDANT: Well, Your Honor, I
apologize if anything _ any of my actions were
mistaken in any way, form, or fashion. It's
not my intention at all to disrespect this
Court at all. I came here with respect.
THE COURT: She is an officer of the
Court. If you threaten her, then you threaten
THE DEFENDANT: But I did not.
Defendant's counsel on the pending charge of assault with a
deadly weapon inflicting serious injury was present throughout this
entire exchange, but he remained silent. The judge proceeded to
summarily hold defendant in contempt and sentence him to 30 days in
jail. With respect to defendant's other charge, for which he
originally had appeared before the court, the judge increased his
bond to $500,000.00 "[i]n light of the obvious threat to thecommunity if released." At this point, defense counsel asked
permission to approach the bench to retrieve the copies of
defendant's pro se motions. He said nothing about the contempt.
On the same day, 15 September 2003, the trial court entered a
written contempt order, stating that defendant had threatened an
officer of the court and that
[t]he Court finds as a fact, beyond a
reasonable doubt, and concludes as a matter of
law that the defendant is guilty of direct
criminal contempt, because the defendant
committed willful, disruptive conduct,
described above, in the Courtroom, within the
sight and presence of a presiding judicial
official, in violation of G.S. 5a_11(a)(1) &
(2). The said willful behavior directly
tended to impair the respect due the authority
of the Court, and directly interrupted the
business of the Court. It was necessary to
proceed summarily in order to maintain the
dignity and authority of the Court.
A handwritten note at the bottom of the contempt order indicates
that a copy of the order was forwarded to the jail on 18 September
2003. On 13 October 2003, defendant gave notice of appeal from the
order in open court. Appellate entries followed on the same day.
Defendant's Untimely Appeal
I agree with the majority that the record suggests defendant
failed to make a timely notice of appeal. I also agree that
appellate counsel's reliance upon a general assertion in a footnote
is not adequate. Counsel wrote only
: "Defendant asserts, however,
that the delay [in appealing] was due to the denial of his
constitutional and statutory right to counsel and the summary
nature of the contempt proceeding, as discussed in arguments I and
II below." Counsel did not file a separate petition for writ ofcertiorari or any affidavit in support of his request that this
Court grant defendant a belated appeal. Nor did counsel file a
response to the motion to dismiss, apparently choosing to rely upon
his sketchy footnote.
Under Rule 21 of the Rules of Appellate Procedure, a writ of
certiorari may be issued "when the right to prosecute an appeal has
been lost by failure to take timely action . . . ." N.C.R. App. P.
21(a)(1). It is, however, well-established that "[c]ertiorari may
not be used as a substitute for an appeal expressly provided for by
law, unless the right of appeal has been lost through no fault of
the petitioner." Johnson v. Taylor, 257 N.C. 740, 743, 127 S.E.2d
533, 535 (1962). To meet this requirement, defendants should file
an affidavit in support of the petition for writ of certiorari,
demonstrating a lack of neglect. State v. Johnson, 183 N.C. 730,
731, 110 S.E. 782, 782 (1922) ("[O]n an affidavit showing no
neglect on [the belated appellant's] part, he should have moved for
a certiorari."). See also State v. Angel, 194 N.C. 715, 716, 140
S.E. 727, 728 (1927) (holding that a petitioner must show not only
merit to his claims, but also excusable neglect in failing to
Nevertheless, I believe the evidence apparent on the record is
sufficient to indicate that defendant lost his right to appeal
through no fault of his own. T
he trial transcript reveals that
trial counsel appointed to represent defendant on the underlying
criminal charges took no role during the contempt proceedings.
Since defendant was immediately removed from the courtroom andeffectively no counsel was available to advise or represent
defendant, he did not have a meaningful opportunity to give oral
notice of appeal.
Further, once the trial court reduced its order to writing,
the record does not contain any evidence that the order was in fact
provided to defendant. A handwritten note at the bottom of the
contempt order indicates that a copy of the order was forwarded to
the jail on 18 September 2003. While this note may establish that
the jail received the order, it does not necessarily indicate,
standing alone, that defendant received a copy of the order. The
record contains no suggestion that defendant's trial counsel on the
underlying charges _ or any other counsel acting on his behalf _
received a copy of the order.
As the Fourth Circuit has held, the availability of counsel at
that interim stage is critical to ensuring a defendant access to an
[W]e think that counsel is also required in
the hiatus between the termination of trial
and the beginning of an appeal in order that a
defendant know that he has the right to
appeal, how to initiate an appeal and whether,
in the opinion of counsel, an appeal is
indicated. This interim is a critical,
crucial one for a defendant because he must
make decisions which may make the difference
between freedom and incarceration.
Nelson v. Peyton, 415 F.2d 1154, 1157 (4th Cir. 1969), cert.
denied, 397 U.S. 1007, 25 L. Ed. 2d 420, 90 S. Ct. 1235 (1970).
Under the particular circumstances of this case, I would exercise
discretion to treat defendant's appeal as a petition for writ of
certiorari and allow it in accordance with N.C.R. App. P. 21(a)(1).
I also do not believe that the majority's dismissal can be
reconciled with the United States Supreme Court's holding in Evitts
v. Lucey, 469 U.S. 387, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985).
In Evitts, the Supreme Court held for the first time that a
criminal defendant is entitled to effective assistance of counsel
on appeal. Id. at 396, 83 L. Ed. 2d at 830, 105 S. Ct. at 836.
The Court held that "if a State has created appellate courts as an
integral part of the . . . system for finally adjudicating the
guilt or innocence of a defendant, the procedures used in deciding
appeals must comport with the demands of the Due Process and Equal
Protection Clauses of the Constitution." Id. at 393, 83 L. Ed. 2d
at 827-28, 105 S. Ct. at 834 (internal quotation marks and
citations omitted). Due Process requires "a State that afford[s]
a right of appeal to make that appeal more than a meaningless
ritual by supplying an indigent appellant in a criminal case with
an attorney." Id. at 393-94, 83 L. Ed. 2d at 828, 105 S. Ct. at
834-35 (internal quotation marks omitted).
The Evitts Court pointed to a critical aspect of counsel's
role as "that of expert professional whose assistance is necessary
in a legal system governed by complex rules and procedures for the
defendant to obtain a decision at all _ much less a favorable
decision _ on the merits of the case." Id. at 394 n.6, 83 L. Ed.
2d at 829 n.6, 105 S. Ct. at 835 n.6. The Court, therefore,
concluded: "A system of appeal as of right is established
precisely to assure that only those who are validly convicted have
their freedom drastically curtailed. A State may not extinguishthis right because another right of the appellant _ the right to
effective assistance of counsel _ has been violated." Id. at 399-
400, 83 L. Ed. 2d at 832, 105 S. Ct. at 838.
Here, by dismissing this appeal, the majority denies defendant
his right to appeal because he lacked counsel below and because his
appellate counsel failed to effectively seek a belated appeal. I
agree with the majority's conclusion that appellate counsel should
not have relied upon a conclusory and pro forma footnote requesting
review by writ of certiorari, but I join the United States District
Court for the Middle District of North Carolina in believing that
the sanction for such a dereliction should not be borne by the
When counsel unnecessarily jeopardizes
petitioner's right to an appeal, it is
incumbent on the state courts to take
prophylactic action to prevent forfeiture of
the appeal. No good reason exists to penalize
petitioner for his counsel's failure. Upon
discovering a dereliction of duty by counsel,
the state court would have been better advised
to have disciplined counsel rather than visit
the retribution on petitioner.
Galloway v. Stephenson, 510 F. Supp. 840, 843-44 (M.D.N.C. 1981).
Accordingly, I would exercise our discretion under Rule 2 to
suspend the rules and hear defendant's appeal. I am particularly
concerned given the extreme and fundamental nature of the error
In contempt proceedings, "the trial judge's findings of fact
are conclusive on appeal when supported by any competent evidence
and are reviewable only for the purpose of passing on theirsufficiency." O'Briant v. O'Briant
, 313 N.C. 432, 436_37, 329
S.E.2d 370, 374 (1985). As always, however, the trial court's
conclusions of law are reviewable de novo
by the appellate courts.
Carolina Power & Light Co. v. City of Asheville
, 358 N.C. 512, 517,
597 S.E.2d 717, 721 (2004).
North Carolina recognizes two types of criminal contempt:
direct and indirect. According to North Carolina's criminal
contempt statute, N.C. Gen. Stat. § 5A_13 (2003):
(a) Criminal contempt is direct criminal
contempt when the act:
(1) Is committed within the sight
or hearing of a presiding
judicial official; and
(2) Is committed in, or in
immediate proximity to, the
room where proceedings are
being held before the court;
(3) Is likely to interrupt or
interfere with matters then
before the court.
(Emphasis added.) With direct contempt, the judge may summarily
punish the contemnor following the procedures of
N.C. Gen. Stat. §
5A-14 (2003), which permits "summary" contempt proceedings if they
occur contemporaneously with the contemptuous act. The court is
only required to give the person charged with contempt "summary
notice of the charges and a summary opportunity to respond." Id.
Any criminal contempt other than direct criminal contempt is
considered indirect criminal contempt.
N.C. Gen. Stat. §
The court must then, prior to punishing the contemnor, follow the
procedure specified in
N.C. Gen. Stat. §
N.C. Gen. Stat. §
5A-15 "provides for a plenary hearing
for indirect contempt (and
for certain direct contempt), and establishes, inter alia
requirements of notice and a hearing." Cox v. Cox
, 92 N.C. App.
702, 706, 376 S.E.2d 13, 16 (1989) (emphasis added). Further,
"[s]ince criminal contempts are crimes, one accused of criminal
contempt must be afforded all appropriate procedural safeguards."
In the present case, the trial court found defendant guilty of
direct contempt and sentenced defendant in accordance with the
summary proceedings described in N.C. Gen. Stat. § 5A_14. The
record, however, unmistakably reveals that the judge himself
neither saw nor heard the conduct that he was punishing. As the
trial judge stated when confronting defendant, "the district
attorney said that while you were behind me where I couldn't see
that you looked at her and _ what did you say that he mouthed?"
(Emphasis added.) T
he judge had to learn from others that which he
did not directly observe himself.
The State urges us to apply N.C. Gen. Stat. § 5A_13
all actions that occur in the judge's presence, instead of limiting
direct contempt to incidents that the judge actually sees and/or
hears. The State cites no authority that supports such a
construction of North Carolina's contempt statute. In fact, our
Supreme Court has held that when "the court has no direct knowledge
of the facts constituting the alleged contempt, in order for the
court to take original cognizance thereof and determine the
question of contempt, the proceedings must follow the proceduralrequirements as prescribed for indirect contempt . . . ." Galyon
241 N.C. 120, 125, 84 S.E.2d 822, 826 (1954). See also
, 92 N.C. App. at 707, 376 S.E.2d at 17 (holding that a trial
court must employ indirect contempt procedures when "[t]he trial
judge had no direct knowledge of facts which would establish" acts
If, as here, the trial judge did not see or hear the
contemptuous conduct, but instead relied upon the reports of
others, he necessarily does not have "direct knowledge" of the
contempt. In short, the plain language of N.C. Gen. Stat. §
(a)(1) requires that an action occur within the actual sight
or hearing of the trial judge before it may be the subject of
summary contempt proceedings under N.C. Gen. Stat. §
Groppi v. Leslie
, 404 U.S. 496, 504 n.8, 30 L. Ed. 2d 632, 639 n.8,
92 S. Ct. 582, 587 n.8 (1972) (observing that the Court "has been
careful to limit strictly the exercise of the summary contempt
power to cases in which it was clear that all of the elements of
misconduct were personally observed by the judge");
, 295 Md. 217, 226, 454 A.2d 353, 358 (1983)
holding that if
the judge has no personal knowledge of some aspect of the
contemptuous behavior and must fill in the gaps with evidence from
an outside source, then direct contempt summary proceedings are not
Ex Parte L.T. Wisdom
, 223 Miss. 865, 872, 79 So. 2d
523, 526 (1955)
when the trial judge had no personal
knowledge of the misbehavior occurring in the courtroom, but had to
be informed of the misbehavior by the testimony of others, thetrial court was not permitted to proceed summarily).
The facts of the present case illustrate why North Carolina's
statutory contempt scheme requires that the trial court have
personal knowledge of the allegedly contemptuous act before
employing summary proceedings. Here, the judge's ruling was based
on an unsworn statement by the prosecutor together with unsworn and
unrecorded statements of attorneys in the courtroom who apparently
willing to say or who have said" defendant mouthed a threat.
Defendant's conviction is not based on what the judge knew to have
happened, but rather on unsworn statements of courtroom observers
taken on faith and not subject to cross-examination.
t is beyond argument that unsworn statements by counsel may
not serve as evidence. See, e.g.
, State v. Swimm
, 316 N.C. 24, 32,
340 S.E.2d 65, 71 (1986) (holding that "statements made by defense
counsel during argument at the sentencing hearing do not constitute
evidence in support of statutory mitigating factors"); State v.
, 156 N.C. App. 161, 164, 576 S.E.2d 134, 137 (2003)
(holding that "trial courts cannot find an aggravating factor where
the only evidence to support it is the prosecutor's mere assertion
that the factor exists"). It is even more fundamental that a
defendant may not be convicted on the basis of unsworn remarks of
potential witnesses _ in this case Mr. Kimel and his unnamed
colleagues. State v. Levy
, 200 N.C. 586, 587, 158 S.E. 94, 95
(1931) (noting that "the testimony of unsworn witnesses" is
In short, because the trial court had no personal knowledge ofthe acts and because of the trial court's summary proceedings, the
record contains no evidence at all to support defendant's
conviction. No court may convict a criminal defendant and deprive
him of his liberty solely on the basis of unsworn statements,
volunteered by unidentified individuals, that were made with little
or no opportunity for cross-examination or rebuttal.
Since the trial judge did not have personal knowledge of
defendant's allegedly contemptuous behavior, this case involves
indirect contempt, requiring compliance with the procedural
protections of N.C. Gen. Stat. § 5A-15. I would, therefore,
reverse the trial court's decision and remand for further
proceedings in accordance with N.C. Gen. Stat. § 5A-15.
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