State v Wheeler, (05-225) 11/01/2005

Appeal by Defendant from order entered 17 November 2004 by Judge W. Russell Duke, Jr. in Superior Court, Pitt County. Heard in the Court of Appeals 10 October 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General R. Marcus Lodge, for the State.

Terry W. Alford for defendant-appellant.

WYNN, Judge.

    “It is well settled that in contempt proceedings the trial court's findings of fact are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment.” Glesner v. Dembrosky, 73 N.C. App. 594, 597, 327 S.E.2d 60, 62 (1985). Because evidence supports the trial court's findings that Defendant used “inappropriate profane language before the magistrate[;]” the magistrate warned Defendant that he could be held in contempt; the magistrate informed Defendant of the punishments that might be imposed for contempt; Defendant continued his contemptuous conduct before the magistrate, we uphold the order of contempt in thismatter.
    Defendant Derrick Wheeler appeals from an order finding him in direct criminal contempt. The relevant facts are as follows: On 7 August 2004, Defendant was brought before Pitt County Magistrate J. Keith Knox for a probable cause hearing on a charge of driving while impaired. After Defendant “repeatedly disrupted proceedings” during the hearing, Magistrate Knox found Defendant in direct criminal contempt and ordered thirty days confinement. Defendant appealed to the superior court for a trial de novo pursuant to section 5A-17 of the North Carolina General Statutes.
    At the de novo hearing held before Judge W. Russell Duke, Magistrate Knox testified that Defendant repeatedly interrupted the police officer while he was testifying at the probable cause hearing. Magistrate Knox warned Defendant that he would be found in contempt if he continued to disrupt the proceedings and that Defendant could get up to thirty days for contempt. In response, Defendant stated, “go ahead and give me thirty days, give me sixty days, I don't give a damn, give me ninety days,” Defendant continued “mumbling and carrying on.” Magistrate Knox testified that the probable cause hearing lasted twenty minutes longer than usual because of Defendant's behavior. After Magistrate Knox warned Defendant “about a dozen times” about his behavior, Magistrate Knox found Defendant in contempt. As Defendant was being escorted to the detention center, Defendant asked Magistrate Knox whether he wanted Defendant to “kiss his ass.” Magistrate Knox testified that he filled out the appropriate paperworkrequired by statute. On cross-examination, Magistrate Knox testified that after he held Defendant in contempt, he did not inform Defendant of his option to appeal or challenge his ruling because Defendant “was ready to get out of there at that particular time.” At the close of the State's evidence, Defendant moved to dismiss the contempt charge. The trial court denied the motion.
    Defendant testified on his own behalf. Defendant testified that the police officer, not Magistrate Knox, told him to be quiet or else Defendant would be held in contempt; that Magistrate Knox never told Defendant he was in contempt; and that Defendant did not tell Magistrate Knox that he did not care if he was given thirty, sixty, or ninety days. Defendant again moved to dismiss the charge; the motion was denied.
    By its 17 November 2004 order, the superior court found beyond a reasonable doubt that Defendant directed profane and contemptuous language to the magistrate at the probable cause hearing; and that Defendant continued his contemptuous conduct after being warned that he might be held in contempt and being informed of the possible punishments. The superior court concluded Defendant was in contempt of the magistrate and ordered Defendant be incarcerated in the custody of the Sheriff of Pitt County for thirty days credit and fined in the amount of $500. Defendant appeals.
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    Defendant contends the superior court erred when it denied his motions to dismiss and punished him for criminal contempt. We disagree.     An appeal from a summary finding of contempt in district court is reviewed de novo by a superior court. N.C. Gen. Stat. § 5A-17 (2003). The de novo hearings are plenary proceedings that must be conducted in accordance with section 5A-15 of the North Carolina General Statutes. “It has long been held that when reviewing a contempt order de novo, the superior court reviews the facts and law, and additional testimony can be heard.” State v. Ford, 164 N.C. App. 566, 569, 596 S.E.2d 846, 849 (2004). This Court has held that a trial court's order holding a person in criminal contempt of court must indicate that the “beyond a reasonable doubt” standard has been applied to the court's findings of fact. Id. “It is well settled that in contempt proceedings the trial court's findings of fact are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment.” Glesner, 73 N.C. App. at 597, 327 S.E.2d at 62.
    In the present case, Defendant does not argue that there was insufficient competent evidence to warrant him being found guilty of criminal contempt, only that the magistrate failed to provide him with notice and an opportunity to respond to its charge pursuant to section 5A-14(b) of the North Carolina General Statutes. Defendant's appeal to this Court, however, is from the proceeding in the superior court, which was a de novo plenary hearing for contempt pursuant to section 5A-15 of the North Carolina General Statutes. Therefore, Defendant's specific argument regarding the magistrate's action or inaction ismisplaced. The superior court found beyond a reasonable doubt that Defendant used “inappropriate profane language before the magistrate[;]” the magistrate warned Defendant that he could be held in contempt; that the magistrate informed Defendant of the punishments that might be imposed for contempt; that Defendant continued his contemptuous conduct before the magistrate; and that the magistrate found Defendant in contempt of court. Accordingly, the trial court did not err in denying Defendant's motions to dismiss, and ultimately concluding Defendant was guilty of criminal contempt.
    No error.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

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