IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA20-227
Filed: 1 December 2020
Surry County, No. 18 CRS 616
STATE OF NORTH CAROLINA
v.
AMANDA WENDORF, Defendant.
Appeal by Defendant from order entered 7 November 2019 by Judge Angela B.
Puckett in Surry County Superior Court. Heard in the Court of Appeals 7 October
2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Ameshia A. Cooper, for the State.
Paglen Law PLLC, by Louise M. Paglen, for the Defendant.
BROOK, Judge.
Amanda Wendorf (“Defendant”) appeals from the trial court’s order finding her
in criminal contempt. We affirm the order of the trial court.
I. Background
Defendant and Jamie Davis were involved in a romantic relationship in 2018
that featured episodes of domestic violence. After one of these episodes, Mr. Davis
was charged with assault on a female on 23 June 2018. On 17 August 2018, STATE V. WENDORF
Opinion of the Court
Defendant was personally served with a subpoena compelling her to appear and
testify at Mr. Davis’s trial on 19 September 2018.
On 19 September 2018, the State’s case against Mr. Davis came on for trial in
Surry County District Court before the Honorable Marion Boone. The assistant
district attorney made a statement at the beginning of the calendar call of cases set
for hearing that day, asking that the individuals whose cases were set for hearing
identify themselves when their names were called out and that victims and witnesses
in the cases also identify themselves. When the assistant district attorney called Mr.
Davis’s name, Mr. Davis identified himself, but Defendant did not.
Later in the session of court, the assistant district attorney called Mr. Davis’s
case for trial and Mr. Davis approached the defense table. Noting the absence of
Defendant, the State’s only witness in the case against Mr. Davis, the assistant
district attorney moved for a continuance, but Judge Boone denied the motion. The
assistant district attorney therefore took a voluntary dismissal, and the case against
Mr. Davis was dismissed. The assistant district attorney then moved that the court
order Defendant to show cause why she should not be held in contempt for her failure
to appear that day, which Judge Boone granted.
Defendant was personally served with the show cause order and the matter
came on for hearing on 2 November 2018. Judge Boone found Defendant in criminal
contempt that day and fined her $250 for her failure to appear on 19 September 2018.
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On 9 November 2018, Defendant appealed from Judge Boone’s order to superior
court.
The matter came on for hearing in Surry County Superior Court on 28 October
2019 before the Honorable Angela B. Puckett. Judge Puckett found Defendant in
criminal contempt and fined her $250 in an order entered on 8 November 2019.
Defendant timely appealed from the superior court’s order to our Court.
II. Standard of Review
In general, “our 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, 668 S.E.2d 110, 111 (2008) (internal marks and citation omitted).
“Findings of fact are binding on appeal if there is competent evidence to support them,
even if there is evidence to the contrary. The trial court’s conclusions of law drawn
from the findings of fact are reviewable de novo.” State v. Salter, 264 N.C. App. 724,
732, 826 S.E.2d 803, 809 (2019) (citation omitted). Of course, “[t]he issue of subject
matter jurisdiction may be raised at any time, even for the first time on appeal.” State
v. Barnett, 223 N.C. App. 65, 68, 733 S.E.2d 95, 98 (2012). Because subject matter
jurisdiction is an issue of law, review is de novo. Id.
III. Analysis
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Defendant makes essentially five arguments on appeal, which we address in
turn.
A. Failure to Appear
Defendant first argues that the failure to appear and testify when subpoenaed
cannot be the basis for a finding of criminal contempt because it does not constitute
“[w]illful disobedience of, resistance to, or interference with a court’s lawful process,
order, directive, or instruction or its execution.” N.C. Gen. Stat. § 5A-11(a)(3) (2019).
We disagree.
Contempts of court are classified in two main divisions, namely: direct and indirect, the test being whether the contempt is perpetrated within or beyond the presence of the court. A direct contempt consists of words spoken or acts committed in the actual or constructive presence of the court while it is in session or during recess which tend to subvert or prevent justice. An indirect contempt is one committed outside the presence of the court, usually at a distance from it, which tends to degrade the court or interrupt, prevent, or impede the administration of justice.
Galyon v. Stutts, 241 N.C. 120, 123, 84 S.E.2d 822, 824-25 (1954) (internal citations
omitted). By statute, “[a]ny criminal contempt other than direct criminal contempt
is indirect criminal contempt[.]” N.C. Gen. Stat. § 5A-13(b) (2019). Proceedings for
criminal contempt are “brought to preserve the power and to vindicate the dignity of
the court and to punish for disobedience of its processes or orders.” Galyon, 241 N.C.
at 123, 84 S.E.2d at 825. They “are punitive in their nature, and the government, the
courts, and the people are interested in their prosecution.” Id.
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Under Rule 45 of the North Carolina Rules of Civil Procedure, applicable to
subpoenas in North Carolina in criminal cases, see N.C. Gen. Stat. § 15A-801 (2019),
“[f]ailure by any person without adequate excuse to obey a subpoena served upon the
person may be deemed a contempt of court[,]” Id. § 1A-1, Rule 45(e)(1).1
Definitionally, a subpoena is “[a] writ or order commanding a person to appear before
a court . . . , subject to a penalty for failing to comply.” Subpoena, Black’s Law
Dictionary 1563 (9th ed. 2009). Accordingly, our Supreme Court has held that
willfully refusing to testify when subpoenaed can constitute criminal contempt of
court, In re Williams, 269 N.C. 68, 75, 152 S.E.2d 317, 323 (1967), as can offering
obviously false or evasive testimony, since it is equivalent to the willful refusal to
testify, Galyon, 241 N.C. at 124, 84 S.E.2d at 825. Similarly, we have held that
attempting to persuade a witness to disobey a subpoena and fail to appear constitutes
criminal contempt under N.C. Gen. Stat. § 5A-11(a)(3) even where the witness,
though frightened, still appears and testifies. State v. Wall, 49 N.C. App. 678, 679-
80, 272 S.E.2d 152, 153 (1980).
Just as testifying evasively or obviously falsely is equivalent to refusing to
testify in willful disobedience to the command of a subpoena, so too is willfully failing
1 Defendant argues that the absence of the word “criminal” in Rule 45(e)(1) means that compliance with subpoenas can only be enforced in proceedings for civil, rather than criminal contempt. N.C. Gen. Stat. § 5A-11(a)(3) has not been interpreted so narrowly, however. See, e.g., State v. Wall, 49 N.C. App. 678, 680, 272 S.E.2d 152, 153 (1980) (criminal contempt under N.C. Gen. Stat. § 5A-11(a)(3) upheld where the defendant attempted to intimidate the witness into disobeying subpoena).
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to appear when a subpoena compels a witness’s appearance to testify. A valid
subpoena is the lawful process of a court. See Process, Black’s Law Dictionary 1325
(9th ed. 2009) (defining “process” as “[a] summons or writ, esp. to appear and respond
in court”). The failure to appear when ordered is punishable as criminal contempt.
O’Briant v. O’Briant, 313 N.C. 432, 434-35, 329 S.E.2d 370, 372-73 (1985). We
therefore hold that failing to appear when subpoenaed can be punished as criminal
contempt because it constitutes “[w]illful disobedience of, resistance to, or
interference with a court’s lawful process[.]” N.C. Gen. Stat. § 5A-11(a)(3) (2019).
B. Facial Validity of Show Cause Order
Defendant complains of a number of defects in the district court’s proceeding
and order finding her in criminal contempt, many of which we lack jurisdiction to
consider. However, her argument that the district court lacked jurisdiction over the
proceeding because the show cause order initiating the proceeding was facially
defective is a collateral attack on the jurisdiction of the superior court. Because this
assertion, if true, would entail that the superior court lacked jurisdiction to find her
in criminal contempt, we have jurisdiction to address it. We reject the argument,
though, and hold that the show cause order in district court was not facially defective.
Section 5A-17(a) of the General Statutes of North Carolina provides that “[a]
person found in criminal contempt may appeal in the manner provided for appeals in
criminal actions, except appeal from a finding of contempt by a judicial official inferior
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to a superior court judge is by hearing de novo before a superior court judge.” N.C.
Gen. Stat. § 5A-17(a) (2019). An appeal under N.C. Gen. Stat. § 5A-17(a) to superior
court is not an appeal on the record, however, unlike an appeal to our Court or the
Supreme Court. See State v. Ford, 164 N.C. App. 566, 569, 596 S.E.2d 846, 849 (2004).
While a defendant in a criminal contempt proceeding is not entitled to a jury trial
because criminal contempt does not qualify as a serious offense within the meaning
of the Sixth Amendment, Blue Jeans Corp. v. Amalgamated Clothing Workers of Am.,
275 N.C. 503, 511, 169 S.E.2d 867, 872 (1969), an appeal de novo in superior court of
a finding of criminal contempt in district court is otherwise “a new trial . . . from the
beginning to the end[,]” State v. Brooks, 287 N.C. 392, 405, 215 S.E.2d 111, 120 (1975).
“[I]t is as if the case had been brought there originally and there had been no previous
trial.” State v. Sparrow, 276 N.C. 499, 507, 173 S.E.2d 897, 902 (1970).
Generally speaking, we lack jurisdiction to review a district court’s contempt
proceeding, Jones v. Jones, 121 N.C. App. 529, 530, 466 S.E.2d 344, 345 (1996),
because N.C. Gen. Stat. § 5A-17(a) “vests exclusive jurisdiction in the superior court
to hear appeals from orders in the district court holding a person in criminal
contempt[,]” Michael v. Michael, 77 N.C. App. 841, 843, 336 S.E.2d 414, 415 (1985).
Still, “[t]he jurisdiction of the superior court on appeal from a conviction in district
court is derivative.” State v. Wesson, 16 N.C. App. 683, 689, 193 S.E.2d 425, 429
(1972). If “a court has no authority to act, its acts are void, and may be treated as
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nullities anywhere, at any time, and for any purpose.” Corey v. Hardison, 236 N.C.
147, 153, 72 S.E.2d 416, 420 (1952). And “[w]here a court enters an order without
jurisdiction to do so, . . . the appropriate action on the part of the appellate court is to
arrest judgment or vacate the order entered without authority.” State v. Briggs, 257
N.C. App. 500, 502, 812 S.E.2d 174, 176 (2018) (internal marks and citations omitted).
Defendant argues that the district court never had jurisdiction to initiate the
contempt proceeding because the show cause order was facially defective. N.C. Gen.
Stat. § 5A-17(a) does not preclude our review of this issue because if the district court
lacked jurisdiction to find Defendant in criminal contempt, so did the superior court,
and its order is void. Defendant argues that the defect of the show cause order is that
it did not comply with N.C. Gen. Stat. § 15A-924(5), which codifies pleading
requirements applicable to criminal cases in superior court. We disagree.
By way of background, there are two kinds of criminal contempt proceedings:
summary proceedings, which are for direct criminal contempt, and plenary
proceedings, which are for indirect criminal contempt. See N.C. Gen. Stat. § 5A-13
(2019). Whereas in plenary proceedings for indirect criminal contempt, a judicial
official must “proceed by an order directing the [contemnor] to appear before a judge
at a reasonable time specified in the order and show cause why he should not be held
in contempt of court[,]” and provide a copy of the show cause order to the contemnor
in advance of the hearing, id. § 5A-15(a), in summary proceedings, the notice
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requirement is much more minimal, id. § 5A-14(b) (contemnor need only be provided
with “summary notice of the charges and a summary opportunity to respond”).
We have observed that in a criminal contempt proceeding, “a show cause order
is analogous to a criminal indictment[,]” an observation Defendant makes much of in
her argument. State v. Coleman, 188 N.C. App. 144, 149, 655 S.E.2d 450, 453 (2008).
However, a show cause order is not equivalent to an indictment. See State v. Revels,
250 N.C. App. 754, 762, 793 S.E.2d 744, 750 (2016). In fact, in Revels, we rejected the
same argument Defendant now makes. Id. at 763 n.1, 793 S.E.2d at 750 n.1. The
reason is that the requirements of N.C. Gen. Stat. § 15A-924(5) do not apply to
proceedings for criminal contempt, direct or indirect. The notice requirement in a
plenary proceeding for indirect criminal contempt, for example, is much less
demanding than in an ordinary criminal case in superior court. Compare, e.g., Revels,
250 N.C. App. at 762, 793 S.E.2d at 750 (allowing incorporation by reference to a prior
court order in a show cause order for indirect criminal contempt) with N.C. Gen. Stat.
§ 15A-924(5) (requiring, among other things, a separate count for each offense and a
factual statement supporting every element of each offense charged). And in a
proceeding for direct criminal contempt, the notice requirement is even less
demanding, and in some cases, almost nonexistent. See In re Owens, 128 N.C. App.
577, 581, 496 S.E.2d 592, 595 (1998), aff’d, 350 N.C. 656, 517 S.E.2d 605 (1999) (per
curiam) (“Notice and a formal hearing are not required when the trial court promptly
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punishes acts of contempt in its presence.”); Ford, 164 N.C. App. at 571, 596 S.E.2d
at 850 (observing that some direct criminal contempt proceedings are of such “limited
instance [that] there [are] no factual determinations for the court to make.”).
Accordingly, we hold that the district court had jurisdiction, and the show cause order
was not defective.
C. Standard of Proof
Defendant contends in the alternative that the district court’s failure to
indicate that it found she was in criminal contempt based on the reasonable doubt
standard of proof is a jurisdictional defect that deprived the superior court of
jurisdiction on appeal from the district court’s order. None of the cases cited in
Defendant’s brief support this proposition, however. The cases cited in Defendant’s
brief support the proposition that proof beyond a reasonable doubt is the standard of
proof applicable to criminal contempt proceedings and that the failure to apply the
correct standard of proof, or indicate whether the correct standard of proof was
applied, is a fatal defect in a superior court’s order of criminal contempt. See GE Betz,
Inc. v. Conrad, 231 N.C. App. 214, 249, 752 S.E.2d 634, 658-59 (2013); State v.
Phillips, 230 N.C. App. 382, 386, 750 S.E.2d 43, 45-46 (2013); State v. Coleman, 188
N.C. App. 144, 151, 655 S.E.2d 450, 454 (2008); State v. Ford, 164 N.C. App. 566, 571,
596 S.E.2d 846, 850 (2004); State v. Verbal, 41 N.C. App. 306, 307, 254 S.E.2d 794,
795 (1979). Even where we have observed in dicta that a district court erred by failing
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to indicate it had applied the correct standard of proof, we have gone on to review the
order entered in superior court on appeal from the district court’s order – review that
would be precluded if the district court’s failure to indicate whether the correct
standard of proof had been applied were an error depriving the superior court of
jurisdiction on appeal. Ford, 164 N.C. App. at 570-71, 596 S.E.2d at 849-50. We hold
that this defect in a district court’s order is not jurisdictional. Accordingly, the
superior court was not deprived of jurisdiction on appeal even though the district
court’s order did not indicate whether the correct standard of proof was applied.
D. De Novo Review in Superior Court
Defendant next argues that it was plain error for the superior court to allow
the judge who presided over the contempt proceeding in district court to testify during
the de novo hearing in superior court on appeal from that judge’s order. We hold that
admitting this testimony was not error, much less plain error.
“Plain error analysis applies to [unpreserved] evidentiary matters and jury
instructions.” State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634 (2009) (applying
plain error standard in assessing admissibility of testimony pursuant to Rule 403);
see also State v. Coleman, 227 N.C. App. 354, 357, 742 S.E.2d 346, 348 (2013) (“Plain
error review is limited to [unpreserved] errors in a trial court’s jury instructions or a
trial court’s rulings on admissibility of evidence.”) (quoting State v. Roache, 358 N.C.
243, 275, 595 S.E.2d 381, 403 (2004) (alterations omitted)). To demonstrate plain
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error, the defendant must show that the error had a probable impact on the finder of
fact’s determination of guilt. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326,
334 (2012). Preserved evidentiary errors, on the other hand, are reviewed for whether
“there is a reasonable possibility that, had the error in question not been committed,
a different result would have been reached[.]” N.C. Gen. Stat. § 15A-1443(a) (2019)
(emphasis added).
A witness’s competency to testify is committed to the discretion of the trial
court and will not be disturbed absent an abuse of discretion. State v. Pope, 24 N.C.
App. 217, 219-20, 210 S.E.2d 267, 269-70 (1974). Demonstrating an abuse of
discretion requires “a showing that the ruling was so arbitrary that it could not have
been the result of a reasoned decision.” Kearney v. Bolling, 242 N.C. App. 67, 72, 774
S.E.2d 841, 846 (2015).
Defendant suggests that a district court judge testifying as a witness during a
de novo hearing for criminal contempt in superior court constitutes plain error
because the district court judge cannot be neutral and disinterested while testifying
in an appeal from his or her own ruling. Defendant contends in the alternative that
a district court judge testifying at the de novo hearing in superior court violates Rule
605 of the North Carolina Rules of Evidence, which prohibits a judge from testifying
in a proceeding over which he or she is presiding. We disagree on both counts.
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First, these assertions seem predicated on a misapprehension of the scope of
the superior court’s review. As noted previously, de novo review in superior court in
an appeal under N.C. Gen. Stat. § 5A-17(a) is “a new trial . . . from the beginning to
the end[.]” Brooks, 287 N.C. at 405, 215 S.E.2d at 120. “[I]t is as if the case had been
brought there originally and there had been no previous trial.” Sparrow, 276 N.C. at
507, 173 S.E.2d at 902. District Court Judge Marion Boone was not presiding over
the de novo hearing before Superior Court Judge Angela B. Puckett; she was
testifying as a witness with knowledge of whether Defendant had failed to appear on
19 September 2018 in her courtroom. While there is a risk of prejudice whenever a
judicial official testifies in a subsequent proceeding of a case over which he or she has
previously presided, offering this testimony does not in and of itself violate Rule 605
of the North Carolina Rules of Evidence. State v. Lewis, 147 N.C. App. 274, 279-80,
555 S.E.2d 348, 352 (2001). Rule 605 only prohibits the presiding judge from offering
testimony. N.C. Gen. Stat. § 8C-1, Rule 605 (“The judge presiding at the trial may
not testify in that trial as a witness.”) (emphasis added). In the de novo hearing before
Judge Puckett, Rule 605 prohibited Judge Puckett, not Judge Boone, from testifying.
Second, witnesses who are not neutral or disinterested are not categorically
prohibited from testifying. Generally speaking, anyone can be a witness. See id.
§ 8C-1, Rule 601(a). While there is an exception for interested witnesses who derive
their interest from people who are no longer alive, id. § 8C-1, Rule 601(c), trial courts
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enjoy discretion to guard against the risk of unfair prejudice by excluding testimony,
including testimony by judges in prior proceedings of the same case, Lewis, 147 N.C.
App. at 279-80, 555 S.E.2d at 352, much as they do under Rule 403 of the North
Carolina Rules of Evidence,2 which are matters within their inherent authority,
Schmidt v. Petty, 231 N.C. App. 406, 410, 752 S.E.2d 690, 693 (2013). The interest or
bias of a witness is a proper subject of cross-examination, State v. Hart, 239 N.C. 709,
711, 80 S.E.2d 901, 902 (1954), but does not generally bear on whether the witness is
competent to testify, Albright v. Albright, 67 N.C. 271, 272 (1870).
Accordingly, we hold that there was no violation of Rule 605 when Judge Boone
testified at the hearing over which Judge Puckett presided. Moreover, Judge
Puckett’s decision to allow a witness with knowledge to testify about whether
Defendant was present in court on 19 September 2018 was not arbitrary or manifestly
unsupported by reason. It therefore was not error, much less plain error, for Judge
Puckett to allow Judge Boone to testify.
E. The Superior Court’s Findings of Fact
Defendant finally argues that competent evidence did not support the trial
court’s findings related to her failure to appear because Judge Boone’s testimony
2 See N.C. Gen. Stat. § 8C-1, Rule 403 (2019) (“Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”).
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supporting these findings was inadmissible and there was no competent evidence to
support the trial court’s finding that her failure to appear was willful. We disagree.
As noted above, the failure to appear when ordered can constitute willful
disobedience punishable as criminal contempt. O’Briant, 313 N.C. at 434-35, 329
S.E.2d at 372-73. Furthermore,
[w]here the trial court 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 court.
This Court can only read the record and, of course, the written word must stand on its own. But the trial judge is present for the full sensual effect of the spoken word, with the nuances of meaning revealed in pitch, mimicry and gestures, appearances and postures, shrillness and stridency, calmness and composure, all of which add to or detract from the force of spoken words.
The trial court’s findings turn in large part on the credibility of the witnesses, and must be given great deference by this Court.
Stancill v. Stancill, 241 N.C. App. 529, 531-32, 773 S.E.2d 890, 892 (2015) (citation
omitted).
Lindsay Moose, who was employed as a victim coordinator with the Surry
County District Attorney’s Office on 19 September 2018, testified that she had been
in contact with Defendant prior to that date; that Defendant had been personally
served with the subpoena requiring her to appear and testify on 19 September 2018;
that she called out Defendant’s name before court that day; that she heard the
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assistant district attorney call out Mr. Davis’s name and for victims and witnesses in
Mr. Davis’s case during the calendar call and nobody answered besides Mr. Davis;
and that at no point during the criminal session of court on 19 September 2018 did
Defendant stand up and identify herself.
Judge Boone testified that she was the presiding judge during the 19
September 2018 session of district court when the State’s case against Mr. Davis was
called; that the assistant district attorney instructed witnesses and victims to
announce themselves when a defendant’s name was called during the calendar call;
that the assistant district attorney called Mr. Davis’s case for trial and then called
out Defendant’s name twice, and when she did not answer, requested a continuance,
which Judge Boone denied; and that the assistant district attorney took a voluntary
dismissal of the case when Judge Boone denied his request for a continuance. Judge
Boone testified that at no point during the criminal session of court on 19 September
2018 did Defendant stand up and identify herself. Notably, Defendant’s counsel
chose not to cross-examine Judge Boone.
We hold that Ms. Moose and Judge Boone’s testimony was competent and
admissible evidence supporting the trial court’s findings that Defendant was served
with a subpoena instructing her to appear in court on 19 September 2018, that she
failed to appear on said date, and that her failure to appear was willful. The trial
court, having been “present for the full sensual effect of the spoken word, with the
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nuances of meaning revealed in pitch, mimicry and gestures,” and so forth, Stancill,
241 N.C. App. at 531, 773 S.E.2d at 892, made findings supported by admissible,
competent evidence, and these findings “must be given great deference by this Court,”
id. at 532, 773 S.E.2d at 892.
IV. Conclusion
We affirm the order of the trial court because the failure to appear when
subpoenaed is punishable by criminal contempt of court, the superior court had
jurisdiction over Defendant’s appeal from the district court’s finding of criminal
contempt, and competent evidence supported the superior court’s findings that
Defendant failed to appear as subpoenaed and her failure to appear was willful.
AFFIRMED.
Judge ZACHARY concurs.
Judge BERGER concurs by separate opinion.
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BERGER, Judge, concurring in separate opinion.
I concur with the majority opinion, but concur in result only with regards to
Section D. I write separately because, in that section, the majority should not have
considered Defendant’s Rule 605 argument. Moreover, the majority incorrectly
engages in plain error review on an issue that is within the sound discretion of the
trial court.
I. Rule 605
“The judge presiding at the trial may not testify in that trial as a witness. No
objection need be made in order to preserve the point.” N.C. Gen. Stat. § 8C-1, Rule
605 (2019).
“Issues not presented in a parties brief, or in support of which no reason or
argument is stated, will be taken as abandoned.” N.C. R. App. P. 28(b)(6). Further,
“[i]t is not the duty of this Court to supplement an appellant’s brief with legal
authority or arguments not contained therein.” State v. Pabon, ___ N.C. App. ___,
___, ___ S.E.2d ___, ___ (2020).
Defendant’s Rule 605 argument, to the extent there is one, is not that Judge
Boone was “presiding at the [hearing].” N.C. Gen. Stat. § 8C-1, Rule 605. Rather,
Defendant merely cites to Rule 605 and contends that the trial court deprived him of
a fair hearing when it failed to intervene ex mero motu to exclude Judge Boone’s
testimony. Although no objection is required under Rule 605 to preserve an argument STATE V. WENDORF
BERGER, J., concurring
for review, Defendant’s argument is not grounded in Rule 605. Moreover, Defendant
provides no legal support for an argument pursuant to Rule 605.
Because Defendant abandoned any argument under Rule 605, he is not
entitled to appellate review.
II. Plain Error Review
The majority impermissibly engages in plain error review on an issue that is
within the sound discretion of the trial court.
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C. R. App. P. 10(a)(4).
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice – that, after examination of the entire record, the error had a probable impact on the jury’s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.
State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 334 (2012) (purgandum).
Our Supreme Court has stated that plain error review is not available on
appeal for unpreserved evidentiary issues that fall within a trial court’s sound
discretion. State v. Steen, 352 N.C. 227, 255-56, 536 S.E.2d 1, 18 (2000) (“[T]his Court
has not applied the plain error rule to issues which fall within the realm of the trial
court’s discretion, and we decline to do so now.”).
This Court, following our Supreme Court’s clear direction, has consistently
declined plain error review of evidentiary issues that fall within the trial court’s
discretion. See State v. Blankenship, 259 N.C. App. 102, 125-26, 814 S.E.2d 901, 918-
19 (2018) (Dietz, J., concurring) (“[O]ur Supreme Court has held that plain error
review does not apply to issues which fall within the realm of the trial court’s
discretion”); State v. Norton, 213 N.C. App. 75, 81, 712 S.E.2d 387, 391 (2011)
(“Because our Supreme Court has held that discretionary decisions of the trial court
are not subject to plain error review, we need not address [defendant’s] argument on
this issue”); State v. Cunningham, 188 N.C. App. 832, 836-37, 656 S.E.2d 697, 700
(2008) (refusing to evaluate Rule 403 balancing test for plain error because it falls
within the trial court’s discretion); State v. Jones, 176 N.C. App. 678, 687, 627 S.E.2d
265, 271 (2006) (declining to review Rule 403 balancing test because “ ‘[t]his court has
not applied the plain error rule to issues which fall within the realm of the trial court’s
discretion, and we decline to do so now’ ” (quoting Steen, 352 N.C. at 256, 536 S.E.2d
at 18)); State v. Cook, COA08-628, 2009 WL 678633, *7 (N.C. Ct. App. Mar. 17, 2009)
(unpublished) (“[T]he plain error rule is not applicable to issues that are within the
trial court’s discretion”). See generally State v. Smith, 194 N.C. App. 120, 126-27, 669
S.E.2d 8, 13 (2008) (“[D]iscretionary decisions by the trial court are not subject to
plain error review”); State v. Verrier, 173 N.C. App. 123, 128-29, 617 S.E.2d 675, 679
(2005) (“Plain error review does not apply to decisions made at the trial judge’s
discretion”).
Defendant failed to object at trial to Judge Boone’s testimony. On appeal,
Defendant contends that the trial court committed plain error because he was denied
a fair hearing in Superior Court when it allowed Judge Boone to testify. However,
“[i]t is generally accepted that a judge is competent to testify as to some aspects of a
proceeding previously held before him.” State v. Lewis, 147 N.C. App. 274, 280, 555
S.E.2d 348, 352, (2001) (citation and quotation marks omitted). Further, “it is within
the trial court’s discretion to allow or not allow a judicial official to testify.” Id. at
280, 555 S.E.2d at 352.
The majority acknowledges that the competency of Judge Boone to testify is a
matter within the trial court’s sound discretion. Nonetheless, the majority
impermissibly engages in plain error review and lays the foundation for the expanded
use of plain error review of evidentiary issues that fall within a trial court’s sound
discretion. If our Supreme Court intended to overturn Steen and the multitude of
cases from this Court, it would have done so expressly. Until our Supreme Court
takes that step, we are bound by the clear wording of Steen and the published cases
from this Court.
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