Simpson v. Silver

• Court: Court of Appeals of North Carolina
• Decided: November 5, 2024
• Docket: 23-1094
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-1094

Filed 5 November 2024

Wake County, No. 23 CV 602127-910

SHANA MARIE SIMPSON, Plaintiff,

v.

TRAVIS RAY SILVER, Defendant.

Appeal by Defendant from order entered 29 June 2023 by Judge Jim Black in

Wake County District Court. Heard in the Court of Appeals 17 April 2024.

Legal Aid of North Carolina, Inc., by Corey Frost, Spencer E. Schold, TeAndra H. Miller, James Battle Morgan, Jr., and Celia Pistolis, for plaintiff-appellee.

John M. Kirby for defendant-appellant.

MURPHY, Judge.

Defendant’s arguments as to the admission and exclusion of evidence at trial

are unpreserved and therefore dismissed. The trial court properly found, based on

competent evidence, and concluded, based on its findings, that Defendant committed

an act of domestic violence against Plaintiff. The trial court did not err in entering a

domestic violence order of protection.

BACKGROUND

On 21 June 2023, Plaintiff filed a Complaint and Motion for Domestic Violence

Protective Order against Defendant. Later on that date, the trial court entered an Ex

Parte Domestic Violence Order of Protection, effective through 29 June 2023. SIMPSON V. SILVER

Opinion of the Court

On 29 June 2023, the trial court conducted a hearing on Plaintiff’s complaint

and entered a Domestic Violence Order of Protection, effective through 29 June 2024,

upon concluding that “[D]efendant committed an act of domestic violence against

[Plaintiff].” Defendant appealed.

ANALYSIS

On appeal, Defendant argues that the trial court “erroneously found that the

Defendant’s conduct caused the Plaintiff to suffer an eating disorder and panic

attacks[]” because “[t]he record . . . contains no evidence whatsoever that the

Defendant’s conduct caused either of these conditions.” Defendant first argues that

“[n]umerous cases recognize that one cannot conclude that a given condition caused

a result simply because the result occurred after (or contemporaneous with) the

condition.” Defendant further argues that Plaintiff “did not in fact render” an opinion

“that the Defendant’s actions caused her panic attacks or eating disorder”; and, even

if she had, “[s]he would not have been qualified to render such an opinion[]” because

she is not a medical expert. These arguments constitute a belated attack on Plaintiff’s

testimony as to her panic attacks and eating disorder, where Defendant failed to

object to this testimony during trial and failed to preserve this issue for appeal. See

N.C. R. App. P. 10(a)(1) (2023). We dismiss Defendant’s unpreserved argument as to

whether Plaintiff was qualified to testify about her panic attacks and eating disorder.

Defendant erroneously contends that “[t]he issues raised in this appeal are

reviewed de novo.” This Court has held that our standard of review

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[w]hen the trial court sits without a jury regarding a DVPO[] . . . is whether there was competent evidence to support the trial court’s findings of fact and whether its conclusions of law were proper in light of such facts. Where there is competent evidence to support the trial court’s findings of fact, those findings are binding on appeal.

Kennedy v. Morgan, 221 N.C. App. 219, 220-21 (2012) (quoting Hensey v. Hennessy,

201 N.C. App. 56, 59 (2009)). That is, we review the trial court’s finding that “[due]

to [Defendant’s] threats as well as abusive messages[,] Plaintiff has suffered panic

attacks and developed an eating disorder[]” only to determine whether it is supported

by competent evidence. “Competent evidence is evidence that a reasonable mind

might accept as adequate to support the finding.” Real Time Resolutions, Inc. v. Cole,

__ N.C. App. __, __, 902 S.E.2d 269, 272 (2024) (quoting In re Adams, 204 N.C. App.

318, 321 (2010)).

At trial, Plaintiff testified without objection that, during the relationship,

Defendant threatened that he would kill her if she left him “[m]ore than a dozen

times.” Plaintiff testified that she was “[t]errified” of Defendant after he told her that

he purchased a new black van “in case [he] wanted to stalk [her][.]” Afterwards,

Plaintiff was “really scared[.]” Plaintiff testified that, after she first ended the

relationship with Defendant and asked that he give her “time and space[,]” “he just

refused to give it to” her and “would message [her] again and be really obsessive.”

Plaintiff then testified that she “was having panic attacks” and “developed an eating

disorder over the duration of the relationship[.]” Plaintiff further testified that,

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during the relationship, she developed “intense anxiety” and, at the time of the

hearing, was “constantly looking around everywhere, afraid that [Defendant] is just

going to be there[.]” After Plaintiff ceased contact with Defendant by blocking his

ability to contact her, Defendant “kept creating phone numbers and messaging

[Plaintiff][.]”

During trial, Plaintiff answered affirmatively that she was “facing a little bit

away” from Defendant because she was “afraid to look at him[]” and “[didn’t] want to

see him in [her] peripheral[]” because “[h]e scares [her].” Plaintiff presented evidence

of the messages sent by Defendant through various telephone numbers and social

media accounts, and Defendant did not object. Plaintiff then testified that she felt

[s]tressed out, overwhelmed, scared. I haven’t been able to eat or sleep. I’m struggling to keep my job because I have to take so much time off because I can’t even function. I’ve developed hypertension. I’ve been passing out because my blood pressure is so high.

Plaintiff’s testimony constitutes “evidence that a reasonable mind might accept

as adequate to support the finding[s][,]” Real Time Resolutions, Inc., __ N.C. App. at

__, 902 S.E.2d at 272, made by the trial court that, “[due] to [Defendant’s] threats as

well as abusive messages[,] Plaintiff has suffered panic attacks and developed an

eating disorder[,]” and that Defendant placed Plaintiff “in fear of continued

harassment that rises to such a level as to inflict substantial emotional distress[.]”

The trial court’s findings, in turn, support its conclusion that “[D]efendant committed

an act of domestic violence against [Plaintiff].”

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Defendant also argues that the trial court erred in excluding evidence of

messages he received from Plaintiff’s son. Defendant failed to make an offer of proof

as to this proferred evidence at trial, and we dismiss this unpreserved argument. See

State v. Ramirez, __ N.C. App. __, __, 901 S.E.2d 256, 259 (2024) (cleaned up) (“It is

well settled that in order for a party to preserve for appellate review the exclusion of

evidence, the significance of the excluded evidence must be made to appear in the

record and a specific offer of proof is required unless the significance of the evidence

is obvious from the record.”).

CONCLUSION

Defendant failed to preserve his objections to the trial court’s admission of

Plaintiff’s testimony as to her panic attacks and eating disorder and to make an offer

of proof after the trial court’s exclusion of evidence of messages sent to Defendant by

Plaintiff’s son. Plaintiff’s testimony constituted competent evidence upon which the

trial court could base its finding that Plaintiff suffered substantial emotional distress

from Defendant’s continued harassment, and the trial court properly concluded that

Defendant committed an act of domestic violence against Plaintiff.

DISMISSED IN PART; AFFIRMED.

Judges ARROWOOD and THOMPSON concur.

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