IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-298
Filed 21 May 2025
Carteret County, No. 23CRS000323-150
STATE OF NORTH CAROLINA
v.
MICHAEL ANTHONY ASPIOTE
Appeal by defendant from judgment entered 20 July 2023 by Judge Bob R.
Cherry in Carteret County Superior Court. Heard in the Court of Appeals 25
February 2025.
Attorney General Jeff Jackson, by Assistant Attorney General Dilcy Burton, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
DILLON, Chief Judge.
Defendant Michael Anthony Aspiote challenges the trial court’s judgment
holding him in direct criminal contempt. For the reasoning below, we reverse.
I. Background
Defendant was found to be in direct criminal contempt by the trial court during
a hearing in which he was appearing to plead guilty to unrelated charges. During
the hearing, Defendant admitted to consuming an unspecified substance earlier that
morning, he went into a bathroom in the courthouse and provided a urine sample,
and the sample tested positive for methamphetamine. STATE V. ASPIOTE
Opinion of the Court
The record shows as follows: Defendant appeared in Carteret County Superior
Court to plead to charges arising from an April 2022 crime.
In the written Transcript of Plea form tendered to the trial court, Defendant
responded “Yes” as to whether he was “now using or consuming alcohol, drugs,
narcotics, medicines, pills, or any other substances,” and he indicated that he had
done so sometime that morning.
During the colloquy, Defendant responded “Yes” when the trial judge asked if
he was “now using or consuming alcohol, drugs, narcotics, medicines, pills, or any
other substance,” and Defendant responded that he had done so “[f]irst thing [that]
morning.” Defendant told the trial judge that he knew how the substance(s) he had
taken affected his body and that he believed that his mind was clear and that he
understood the nature of the hearing. However, during the colloquy the trial judge
never asked, nor did Defendant volunteer, the type of substance Defendant had
consumed that morning.
The trial judge continued the colloquy with Defendant for several minutes,
during which Defendant responded “Yes, sir” to over twenty questions regarding his
understanding of the hearing and the plea he was entering. During this portion of
the hearing, the trial judge did not express any concern that Defendant did not
understand the nature of the hearing or the plea agreement, nor does the transcript
show Defendant did not comprehend the nature of the hearing or his plea.
In any event, following the colloquy the prosecutor provided the court with the
-2- STATE V. ASPIOTE
factual basis of the charges against Defendant to which he was pleading. The trial
judge then allowed the victim to speak at length uninterrupted (approximately six
pages of the transcript), who painted Defendant in a negative light.
After hearing from the victim, the trial judge announced he would require
Defendant to be screened for drug use before deciding whether to accept the plea. At
about noon, Defendant was led out of the courtroom to provide a urine sample, during
which time the hearing stood at ease. When Defendant failed to provide a urine
sample by 1:21 p.m., the trial judge announced a lunch break. At 2:31 p.m., the
probation officer notified the trial judge Defendant had provided a sample during the
break and that the sample tested positive for methamphetamine.
The trial judge then announced he was not going to accept Defendant’s plea,
explaining that “the plea was not understandingly, knowingly and intelligently
entered into because [Defendant had just tested] positive for an impairing substance.”
The trial court then found Defendant in direct criminal contempt for delaying
the court’s proceedings and sentenced Defendant to twenty days in jail.
II. Analysis
On appeal, Defendant argues the trial court erred in holding him in direct
criminal contempt. We agree.
“[O]ur standard of review for contempt cases is whether there is competent
evidence to support the trial court’s findings of fact and whether the findings support
the conclusions of law and ensuing judgment.” State v. Phair, 193 N.C. App. 591, 593
-3- STATE V. ASPIOTE
(2008) (quotations and citations omitted). Conclusions of law are reviewed de novo.
See State v. Biber, 365 N.C. 162, 168 (2011).
Under our General Statutes, a defendant may be held in criminal contempt
based on “[w]illful behavior committed during the sitting of a court and directly
tending to interrupt its proceedings[,]” and “[w]illful or grossly negligent failure to
comply with schedules and practices of the court resulting in substantial interference
with the business of the court.” N.C.G.S. §§ 5A-11(a)(1), (7).
Criminal contempt may be either “direct” or “indirect.” N.C.G.S. § 5A-13.
“Direct” criminal contempt occurs where the defendant’s contemptuous act delaying
or interfering with court proceedings was committed “within the sight or hearing of
a presiding judicial officer” and within or in the immediate proximity of the
courtroom. Id. See also O’Briant v. O’Briant, 313 N.C. 432, 435−36 (1985). A trial
judge who observes an act of direct criminal contempt may himself punish the
defendant summarily. N.C.G.S. § 5A-13.
“Indirect” criminal contempt occurs where a defendant violates a court order
outside the presence of a court proceeding. Id. A trial judge may not proceed
summarily against a defendant suspected of indirect criminal contempt, but rather a
hearing may only be held after the defendant is afforded “a reasonable time” to
prepare. Id. § 5A-15(a).
In his order, the trial judge held Defendant in direct criminal contempt in a
summary proceeding based on the following finding:
-4- STATE V. ASPIOTE
Defendant tested positive for methamphetamine, and [the] court inquired whether defendant would test positive and defendant said he would not. This inquiry occurred after the plea was taken but before sentence was given. After waiting more than 2 hours, [Defendant tested positive] for methamphetamine, so plea was stricken.
It appears the trial court held Defendant in direct criminal contempt for lying that
he would not test positive for a controlled substance, thus wasting the court’s time
having to wait for Defendant to complete a drug test.
However, nowhere in the record does it show that Defendant ever represented
to the trial judge he would not test positive for a controlling substance. He was never
asked that question. Rather, the record shows Defendant admitted to ingesting a
substance earlier that morning. He never was asked or stated the type of substance
he ingested. During the colloquy, he did state his mind was clear and that, even
though he had ingested a substance, he understood the nature of the proceedings and
the effect of his “no contest” plea to certain criminal charges. Further, though
Defendant tested positive for methamphetamine, there is nothing in the record to
indicate that Defendant was under the influence of that drug during the hearing.
Our Supreme Court has held that the fact that one has tested positive for an
impairing substance—in that case, cocaine and marijuana—is not conclusive proof
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-298
Filed 21 May 2025
Carteret County, No. 23CRS000323-150
STATE OF NORTH CAROLINA
v.
MICHAEL ANTHONY ASPIOTE
Appeal by defendant from judgment entered 20 July 2023 by Judge Bob R.
Cherry in Carteret County Superior Court. Heard in the Court of Appeals 25
February 2025.
Attorney General Jeff Jackson, by Assistant Attorney General Dilcy Burton, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
DILLON, Chief Judge.
Defendant Michael Anthony Aspiote challenges the trial court’s judgment
holding him in direct criminal contempt. For the reasoning below, we reverse.
I. Background
Defendant was found to be in direct criminal contempt by the trial court during
a hearing in which he was appearing to plead guilty to unrelated charges. During
the hearing, Defendant admitted to consuming an unspecified substance earlier that
morning, he went into a bathroom in the courthouse and provided a urine sample,
and the sample tested positive for methamphetamine. STATE V. ASPIOTE
Opinion of the Court
The record shows as follows: Defendant appeared in Carteret County Superior
Court to plead to charges arising from an April 2022 crime.
In the written Transcript of Plea form tendered to the trial court, Defendant
responded “Yes” as to whether he was “now using or consuming alcohol, drugs,
narcotics, medicines, pills, or any other substances,” and he indicated that he had
done so sometime that morning.
During the colloquy, Defendant responded “Yes” when the trial judge asked if
he was “now using or consuming alcohol, drugs, narcotics, medicines, pills, or any
other substance,” and Defendant responded that he had done so “[f]irst thing [that]
morning.” Defendant told the trial judge that he knew how the substance(s) he had
taken affected his body and that he believed that his mind was clear and that he
understood the nature of the hearing. However, during the colloquy the trial judge
never asked, nor did Defendant volunteer, the type of substance Defendant had
consumed that morning.
The trial judge continued the colloquy with Defendant for several minutes,
during which Defendant responded “Yes, sir” to over twenty questions regarding his
understanding of the hearing and the plea he was entering. During this portion of
the hearing, the trial judge did not express any concern that Defendant did not
understand the nature of the hearing or the plea agreement, nor does the transcript
show Defendant did not comprehend the nature of the hearing or his plea.
In any event, following the colloquy the prosecutor provided the court with the
-2- STATE V. ASPIOTE
factual basis of the charges against Defendant to which he was pleading. The trial
judge then allowed the victim to speak at length uninterrupted (approximately six
pages of the transcript), who painted Defendant in a negative light.
After hearing from the victim, the trial judge announced he would require
Defendant to be screened for drug use before deciding whether to accept the plea. At
about noon, Defendant was led out of the courtroom to provide a urine sample, during
which time the hearing stood at ease. When Defendant failed to provide a urine
sample by 1:21 p.m., the trial judge announced a lunch break. At 2:31 p.m., the
probation officer notified the trial judge Defendant had provided a sample during the
break and that the sample tested positive for methamphetamine.
The trial judge then announced he was not going to accept Defendant’s plea,
explaining that “the plea was not understandingly, knowingly and intelligently
entered into because [Defendant had just tested] positive for an impairing substance.”
The trial court then found Defendant in direct criminal contempt for delaying
the court’s proceedings and sentenced Defendant to twenty days in jail.
II. Analysis
On appeal, Defendant argues the trial court erred in holding him in direct
criminal contempt. We agree.
“[O]ur standard of review for contempt cases is whether there is competent
evidence to support the trial court’s findings of fact and whether the findings support
the conclusions of law and ensuing judgment.” State v. Phair, 193 N.C. App. 591, 593
-3- STATE V. ASPIOTE
(2008) (quotations and citations omitted). Conclusions of law are reviewed de novo.
See State v. Biber, 365 N.C. 162, 168 (2011).
Under our General Statutes, a defendant may be held in criminal contempt
based on “[w]illful behavior committed during the sitting of a court and directly
tending to interrupt its proceedings[,]” and “[w]illful or grossly negligent failure to
comply with schedules and practices of the court resulting in substantial interference
with the business of the court.” N.C.G.S. §§ 5A-11(a)(1), (7).
Criminal contempt may be either “direct” or “indirect.” N.C.G.S. § 5A-13.
“Direct” criminal contempt occurs where the defendant’s contemptuous act delaying
or interfering with court proceedings was committed “within the sight or hearing of
a presiding judicial officer” and within or in the immediate proximity of the
courtroom. Id. See also O’Briant v. O’Briant, 313 N.C. 432, 435−36 (1985). A trial
judge who observes an act of direct criminal contempt may himself punish the
defendant summarily. N.C.G.S. § 5A-13.
“Indirect” criminal contempt occurs where a defendant violates a court order
outside the presence of a court proceeding. Id. A trial judge may not proceed
summarily against a defendant suspected of indirect criminal contempt, but rather a
hearing may only be held after the defendant is afforded “a reasonable time” to
prepare. Id. § 5A-15(a).
In his order, the trial judge held Defendant in direct criminal contempt in a
summary proceeding based on the following finding:
-4- STATE V. ASPIOTE
Defendant tested positive for methamphetamine, and [the] court inquired whether defendant would test positive and defendant said he would not. This inquiry occurred after the plea was taken but before sentence was given. After waiting more than 2 hours, [Defendant tested positive] for methamphetamine, so plea was stricken.
It appears the trial court held Defendant in direct criminal contempt for lying that
he would not test positive for a controlled substance, thus wasting the court’s time
having to wait for Defendant to complete a drug test.
However, nowhere in the record does it show that Defendant ever represented
to the trial judge he would not test positive for a controlling substance. He was never
asked that question. Rather, the record shows Defendant admitted to ingesting a
substance earlier that morning. He never was asked or stated the type of substance
he ingested. During the colloquy, he did state his mind was clear and that, even
though he had ingested a substance, he understood the nature of the proceedings and
the effect of his “no contest” plea to certain criminal charges. Further, though
Defendant tested positive for methamphetamine, there is nothing in the record to
indicate that Defendant was under the influence of that drug during the hearing.
Our Supreme Court has held that the fact that one has tested positive for an
impairing substance—in that case, cocaine and marijuana—is not conclusive proof
the individual was under the influence of that substance at the time of the test. Willey
v. Williamson Produce, 357 N.C. 41, 42 (2003) (adopting dissenting opinion from our
Court at 149 N.C. App. 74 (2002)). See also State v. Royall, 14 N.C. App. 214, 219
-5- STATE V. ASPIOTE
(1972) (concluding trial court properly instructed jury it could find a defendant was
not under the influence of alcohol despite a positive breathalyzer result).
We reiterate the record does not show the type of substance Defendant ingested
on the morning of the hearing. See Willey, 357 N.C. at 42 (recognizing that one can
test positive well after its impairing effects have subsided).
In sum, there is no evidence in the record to support the trial court’s finding
that Defendant represented he would not test positive for an impairing substance.
He merely represented he was of clear mind and understood the nature of the
proceedings, notwithstanding that he had previously ingested a substance.
We note the trial judge also referenced in his order that Defendant caused the
trial proceedings to be delayed a few hours waiting for Defendant to complete his
urine sample. However, Defendant’s failure to provide a urine sample quicker cannot
be the basis of direct criminal contempt, as Defendant’s act in providing the sample
took place outside the presence of the court. Also, there was no finding that
Defendant acted willfully in failing to provide the sample quicker than he did. See
Bank of Zebulon v. Chamblee, 188 N.C. 417, 418 (1924) (holding that an act is not
contemptuous unless it is done willfully).
III. Conclusion
We conclude the record does not support the order holding Defendant in direct
criminal contempt. Accordingly, we reverse that judgment and remand for further
proceedings.
-6- STATE V. ASPIOTE
REVERSED.
Judges HAMPSON and FREEMAN concur.
-7-