An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-586


Filed: 6 September 2005

    v.                    Mecklenburg County                    
                            No. 02 CRS 248812

    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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