DENICE FRANCES GERSCH,
Plaintiff,
v. Wake County
No. 06 CVD 1121
PETER MICHAEL FANTASIA,
Defendant.
Ann Marie Vosburg for plaintiff-appellee.
Darsie, Sharpe, Mackritis & Dukelow, P.L.L.C., by Lisa M.
Dukelow, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Peter Michael Fantasia appeals from a domestic
violence protective order entered 3 February 2006. For the reasons
below, we affirm.
Plaintiff Denice Frances Gersch (Ms. Gersch) and defendant had
been engaged and one child was born during the parties'
relationship. Ms. Gersch filed a complaint and motion for a
domestic violence protective order on 25 January 2006. The next
day, the trial court entered an ex parte domestic violence
protective order against defendant based on allegations that he hit
Ms. Gersch during a visitation exchange. The matter came on for hearing on 3 February 2006. According
to Ms. Gersch, on the afternoon of 24 January 2006, she drove to
her parent's house with the parties' infant son for a visitation
exchange with defendant. Upon parking her automobile in the
driveway, Ms. Gersch's father, Mr. Gersch, took the infant carrier
out of the automobile, and carried the infant towards his house.
Defendant asked Mr. Gersch, “Where [are] you going with my son?”
and grabbed the infant carrier. When Mr. Gersch tried to push
defendant back, defendant punched Mr. Gersch, who fell to the
ground. Defendant then kicked Mr. Gersch in the head. Ms. Gersch
testified that she “jumped on Mr. Fantasia, grabbing him, trying to
pull him off my 62-year-old father and my five-month old son. He
slung me . . . . I ended up being slung into the railing.” Mr.
Gersch then rushed into the house and locked the door. Ms. Gersch
testified that her mother took photos of the bruises she developed
on her side as the result of being flung into the railing.
Mr. Gersch testified that when he took the infant carrier out
of his daughter's automobile, defendant started yelling at him. As
Mr. Gersch started up the steps, defendant tried to grab the infant
seat and Mr. Gersch knocked defendant's arm away. Defendant hit
Mr. Gersch, who fell down, and then defendant kicked Mr. Gersch in
the head. Mr. Gersch testified that he saw Ms. Gersch and
defendant tussling as he ran into the house with the infant. That
night, Mr. Gersch was rushed to the hospital and received stitches
on his face. Deputy Darlene Harper of the Wake County Sheriff's
Office was called to the hospital. Deputy Harper testified at thehearing that she took photos of Ms. Gersch's left side and chest
area and that Ms. Gersch had “red-like whips on her side[] and some
bruising up across her chest area.”
Defendant testified that a friend drove him to Ms. Gersch's
parent's house to pick up his infant son for court ordered
visitation. Upon Ms. Gersch parking her automobile in her parent's
driveway, defendant's friend pulled his automobile into the
driveway. Defendant exited the automobile as Ms. Gersch took the
parties' infant son out of her automobile and gave the infant to
her father, Mr. Gersch, who started up the steps to the house.
According to defendant, when he attempted to take his son, Mr.
Gersch pushed him and grabbed his arm. Thereafter, Ms. Gersch took
the carrier out of her father's hands, and then Mr. Gersch tried to
“swing” at defendant. Defendant testified that in response, he
“took my right hand to block him, and I did catch him in the eye.”
Mr. Gersch again tried to hit defendant, who hit Mr. Gersch with
his left hand. Mr. Gersch fell to the ground and hit his head on
the brick foundation. Defendant stated that Ms. Gersch kicked and
slapped him; he denied kicking Mr. Gersch. Defendant testified
that he sustained bruises from Mr. Gersch grabbing him.
Defendant's friend, Mr. Mersinger, testified that he
accompanied defendant to the Gersch residence on 24 January 2006.
Mr. Mersinger stated that he observed defendant reach for the
infant carrier, and that Mr. Gersch pushed defendant “out of the
way and apparently had grabbed him as well.” He saw defendant
punch Mr. Gersch in the eye. Mr. Mersinger testified that he didnot see defendant kick Mr. Gersch in the head nor did he see Ms.
Gersch pull defendant off of her father because “[t]here was no
need to.” Officer W. William Scott Ross of the Wake County
Sheriff's Office testified that he responded to the incident, spoke
with Ms. Gersch, Mr. Gersch and defendant, and after conferring
with his sergeant, did not seek warrants on anyone. Officer Ross
further testified that Ms. Gersch did not tell him that defendant
assaulted her until Officer Ross informed her that he was not
taking defendant to jail. The trial court entered a domestic
violence protective order against defendant for one year. In the
order, the trial court found that defendant intentionally caused
bodily injury to Ms. Gersch when “Defendant slung [her] into
railing on steps, [] causing bruising to [her] side and chest.”
Defendant appeals.
Defendant contends the trial court erred in entering the
domestic violence protective order because the evidence presented
does not support a finding of domestic violence.
Section 50B-1(a) of the North Carolina General Statutes
defines domestic violence as:
(a) Domestic violence means the
commission of one or more of the following
acts upon an aggrieved party or upon a minor
child residing with or in the custody of the
aggrieved party by a person with whom the
aggrieved party has or has had a personal
relationship, but does not include acts of
self-defense:
(1) Attempting to cause bodily injury, or
intentionally causing bodily injury;
N.C. Gen. Stat. § 50B-1(a) (2005). Where the trial judge sits as
the finder of fact, “and where different reasonable inferences can
be drawn from the evidence, the determination of which reasonable
inferences shall be drawn is for the trial judge.” Sharp v. Sharp,
116 N.C. App. 513, 530, 449 S.E.2d 39, 48, disc. review denied, 338
N.C. 669, 453 S.E.2d 181 (1994) (citation omitted) (emphasis
omitted). “The trial judge has the authority to believe all, any,
or none of the testimony.” Id. The trial court's findings “turn
in large part on the credibility of the witnesses, [and] must be
given great deference by this Court.” State v. Sessoms, 119 N.C.
App. 1, 6, 458 S.E.2d 200, 203 (1995), aff'd per curiam, 342 N.C.
892, 467 S.E.2d 243, cert. denied, 519 U.S. 873, 117 S. Ct. 191,
136 L. Ed. 2d 129 (1996). Accordingly, where the trial court's
findings of fact are supported by competent evidence, they are
binding on appeal. Harris v. Harris, 51 N.C. App. 103, 105, 275
S.E.2d 273, 275, disc. review denied, 303 N.C. 180, 280 S.E.2d 452
(1981).
Here, the trial court found that defendant intentionally
caused bodily injury to Ms. Gersch by having, “slung P[laintiff]
into railing on steps, [] causing bruising to P's side and chest.”
This evidence is supported by Ms. Gersch's testimony that she
jumped on defendant to “pull [him] off my 62-year-old father” and,
at that point, “[defendant] slung me . . . . I ended up being
slung into the railing.” Ms. Gersch further testified that a
photograph taken by her mother five days after the incident showed
bruising on “my side, where I ended up on the side of the railingof the house.” In addition, Deputy Darlene Harper testified that
at the time she saw Ms. Gersch, Ms. Gersch “had red-like whips on
her sides, and I _ on her side, her left side. And some bruising
up across her chest area.” Based on our review of the evidence, we
conclude that there was competent evidence to support the trial
judge's finding that defendant intentionally caused plaintiff
bodily injury and that this finding is sufficient to support the
trial court's conclusion of law, that defendant had committed an
act of domestic violence against Ms. Gersch.
Further, we are unpersuaded by defendant's assertion that the
trial court improperly shifted the burden of proof onto defendant
in determining that defendant committed an act of domestic
violence. After hearing the testimony and arguments from the
parties' attorneys, the trial court stated:
As attorneys very well know, matters of this
come down to credibility of all - - of all of
the witnesses.
And the one thing that I did not hear a
reasonable explanation from - - from the
defendant or his eyewitness, who, quite
frankly, couched his testimony very carefully
and said words quite frequently, such as,
apparently, don't fully recall, didn't see, at
no time did I see.
And there's no explanation for the
bruising to the plaintiff. So this court will
find that on January the 24th Mr. Fantasia did
commit an act of domestic violence of the
plaintiff. . .
We interpret the trial court's statement as a comment on the
fact that, although there were differing versions of the incident,
defendant did not rebut plaintiff's testimony that she received
bruises on her left side as the result of being “slung into” therailing, and therefore the trial court believed Ms. Gersch's
version. As noted above, trial court's findings “turn in large
part on the credibility of the witnesses, [and] must be given great
deference by this Court.” Sessoms, 119 N.C. App. at 6, 458 S.E.2d
at 203. Accordingly, the trial court properly entered the domestic
violence protective order.
The trial court's entry of a domestic violence protective
order against defendant is affirmed.
Affirmed.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
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