NO. COA04-586
Appeal by defendant from a judgment dated 8 December 2003 by
Judge David S. Cayer in Mecklenburg County Superior Court. Heard
in the Court of Appeals 3 March 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Mabel Y. Bullock, for the State.
Robert W. Ewing for defendant-appellant.
BRYANT, Judge.
James Andrew Hampton (defendant) appeals from a judgment dated
8 December 2003
following a jury verdict
convicting him of one
count of a Violation of a Domestic Violence Protective Order
(DVPO). The trial court imposed a suspended sentence of 150 days
and placed defendant
on supervised probation.
On 2 April 2002, Judge Avril U. Sisk of Mecklenburg County
District Court, entered a DVPO in the presence of defendant and his
wife, Ms. Lea, pursuant to N.C. Gen. Stat. § 50B-2 which restrained
defendant from contacting his wife. The DVPO was based upon thetrial court's findings that defendant had punched and slapped his
wife's face, broken two of her fingers and dragged her outside
during an altercation on 10 March 2002. The 2 April 2002 DVPO was
effective for one year, until 2 April 2003. On 19 April 2002
Ms.
Lea filed a Motion to Amend the DVPO and requested that defendant
be able to have contact with her and defendant's youngest child.
A hearing on the motion was scheduled for 29 April 2002.
On 29 April 2002, before the trial court ruled on the Motion
to Amend the DVPO, Ms. Lea filed another Motion to Amend the DVPO
and requested the trial court to suspend defendant's visitation
rights with his children contingent upon him seeking violence
prevention assessment and counseling. At the hearing the trial
court entered an Amended DVPO which still restrained defendant from
contacting Ms. Lea and suspended defendant's visitation with his
children.
On 27 October 2002, defendant and Ms. Lea
were together in
their apartment
. While Ms. Lea prepared dinner, defendant and his
step daughter were arguing over possession of a bookbag. As their
argument escalated and became physical, Ms. Lea approached
defendant with a cooking knife in hand. In an effort to distract
him, she grabbed defendant's arm and he cut himself on the knife.
Defendant then began repeatedly kicking and punching Ms. Lea.
Officer Kenneth Austin of the Mecklenburg County Sheriff'sDepartment responded to a 911 call, and was advised that defendant
had a restraining order against him which prohibited him from being
at Ms. Lea's residence. Defendant
was arrested for violating the
DVPO. Defendant was tried by jury. At the conclusion of the
State's case in chief, defendant made a motion to dismiss stating
to the court as follows:
Your Honor, at this point I would like to make
a Motion to Dismiss both matters. First, with
respect to the violation of the restraining
order, Your Honor, there was conflicting
testimony as to what exactly happened. It was
a confusing situation. The first restraining
order. First there was a temporary
restraining order and then a restraining order
of April 2. Then there was an amended
restraining order of April 29 . . . . Your
Honor, I just submit to the Court that there
is conflicting testimony. It shouldn't even
go to the jury as to whether he violated the
order. . . .
Defendant's motion to dismiss was denied.
Thereafter, at the close
of all the evidence, defendant stated to the court: “We also make
a motion to dismiss at the end of the State's evidence, violating
a domestic violence restraining order and assault on a child. I do
not wish to be heard further at this time.” This motion was
likewise denied.
The trial court then instructed the jury that in order to find
defendant guilty of the charge of knowingly violating a domestic
violence protective order they must find, inter alia: “First thata valid domestic violence protective order had been issued pursuant
to North Carolina law. Second, that the defendant violated the
valid domestic violence protective order by being present at Ms.
Lea's home.” The jury convicted defendant of knowingly violating
a domestic violence protective order. Defendant appeals.
The dispositive issue is whether the trial court erred by
denying defendant's motion to dismiss the
violation
of
a Domestic
Violence
Protective Order
.
N.C. Gen. Stat. § 50B-4.1(a) provides “a person who knowingly
violates a valid protective order [is] guilty of a Class A1
misdemeanor.” N.C.G.S. § 50B-4.1(a) (2003)
. The standard of
review in ruling on a motion to dismiss based on insufficiency of
the evidence is whether, viewed in the light most favorable to the
State, there is substantial evidence of the elements of the
offense.
State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d 597,
602 (1993). Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990)
(quotations omitted).
In this case, the State had to prove that defendant knowingly
violated a valid protective order. N.C.G.S. § 50B-4.1(a). The
State's evidence showed that on 2 April 2002, a DVPO was entered bythe trial court in the presence of defendant, effective until 2
April 2003, and provided that defendant shall not initiate contact
with Mrs. Lea or members of her household. The State's evidence
further showed that per Ms. Lea's motion to amend on 19 April 2002,
she requested the court to allow defendant's contact with her in
order to reconcile their relationship, and further, permit
defendant to have contact with his minor son who resided with Ms.
Lea. Although defendant was not present at the hearing on 29 April
2002, Ms. Lea filed another motion to amend, seeking to suspend
defendant's visitation on the condition defendant receive violence
prevention assessment and counseling. An Amended Order was entered
on 29 April 2002 which prevented defendant from having contact with
Ms. Lea and suspended visitation with his children.
Defendant does not deny the DVPO entered on 2 April 2002
became effective on 2 April 2002, or that the 29 April 2002 Amended
order superceded the 2 April 2002 order and was itself valid.
Defendant instead contends that the expiration dates set forth in
the 29 April 2002 Amended Order are inconsistent, and that
defendant's alleged conduct occurring 27 October 2002 cannot
therefore be the basis of a criminal action alleging a violation of
a domestic violence protective order. This argument is based on
the following: one of the findings of fact in the Amended Order
states “4/29/02 - Plaintiff present. Defendant failed to appear.The court's order today is valid until the next court hearing May
1st, 2002 at 1:30 p.m. in Courtroom 203.” At the same time, a
paragraph in the decretal portion of the order states “this Order
is effective . . . 4-2-03.”
At trial, however, defendant did not
once challenge the issue of whether the 29 April 2002 order was in
effect on 27 October 2002, and he cannot now raise that issue for
the first time on appeal. Defendant, in his motion to dismiss,
only argued generally to the trial court that, because of a lack of
credible evidence concerning defendant's conduct on 27 October 2002
and conflicting testimony concerning the entry of the protective
orders, the case should not be submitted to the jury. Indeed,
defendant's trial strategy, evidence and arguments to the jury
centered on whether defendant
knowingly violated the prohibitions
set forth in the DVPO _ not that it wasn't in effect on 27 October
2002. Defendant failed to make the argument he now makes on appeal
to the trial court, and he cannot “swap horses between courts in
order to get a better mount[.]”
State v. Sharpe, 344 N.C. 190,
194, 473 S.E.2d 3, 5 (1996) (quoting
Weil v. Herring, 207 N.C. 6,
10, 175 S.E. 836, 838 (1934));
see also State v. Hunter, 305 N.C.
106, 112, 286 S.E.2d 535, 539 (1982) (“The theory upon which a case
is tried in the lower court must control in construing the record
and determining the validity of the exceptions.”).
There was significant testimony presented showing defendant'sknowledge of the existence of the order, its scope and effective
dates. Ms. Lea testified
that after the hearing on 29 April 2002,
she called to inform defendant that the terms of the 2 April 2002
restraining order were still in effect. Mecklenburg County
Sheriff's
Deputy Stephanie Marshall testified the 29 April 2002
Amended order was read to defendant on 2 May 2002 as follows: “The
defendant shall stay away from the plaintiff's residence or any
place where the plaintiff receives temporary shelter. A law
enforcement officer shall arrest the defendant if the officer has
probable cause to believe that the defendant has violated this
provision.” Deputy Marshall also testified she served defendant
with a copy of the order on 2 May 2002. Based on Deputy Marshall's
testimony, the trial court instructed the jury to “assume that the
defendant knew the terms of the domestic violence protective
order.”
The evidence presented showed the existence of a valid DVPO
entered on 2 April 2002, and that the same was superceded by the 29
April 2002 Amended order. In the light most favorable to the
State, there was sufficient evidence to prove defendant knowingly
violated a DVPO. Defendant's motion to dismiss was properly
denied.
No error.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).
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