Opinion
No. COA10-117
Filed 7 September 2010 This case not for publication
Appeal by defendant from judgment entered 11 September 2009 by Judge James W. Morgan in Mecklenburg County Superior Court. Heard in the Court of Appeals 30 August 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State. Michael J. Reece for defendant-appellant.
Mecklenburg County Nos. 09 CRS 212789-90.
Defendant Edward C. Elder challenges his convictions for felony violation of a domestic violence protective order and domestic criminal trespass on the sole basis that the trial court erred in denying his motion to dismiss for insufficient evidence of each element of the offenses charged. After careful review, we find no error.
Background
Defendant's ex-wife, Tory Moss, filed a pro se complaint and motion for protective order on 16 October 2002 in Mecklenburg County District Court. The district court entered an ex parte domestic violence protective order ("DVPO") on 16 October 2002. Following a hearing, the court issued a DVPO on 25 October 2002, effective for one year. The certificate of service on the order indicates that defendant was served by mail.
The following year, on 23 October 2003, Ms. Moss filed a motion to renew the DVPO. On 27 October 2003, the trial court entered an order renewing its previous order, which would remain valid until 25 October 2004. A handwritten notation on the order states, "[defendant] present."
On 11 October 2004, Ms. Moss filed another motion to renew the DVPO. The trial court entered an order on 21 October 2004 renewing the protective order for another year, until 21 October 2005. A handwritten notation on the order notes, "[defendant] not present."
Ms. Moss sought another extension by filing a motion to renew on 7 October 2005. This time, the trial court renewed the DVPO for two years, in an order entered 18 October 2005, extending the mandate until 18 October 2007. The bottom portion of the order labeled "Certificate of Service when Defendant Not Present at Hearing" is not completed, suggesting that defendant was present at the hearing.
On 6 September 2007, Ms. Moss filed for another renewal of the order. The certificate of service on the motion indicates that defendant was served by mail on that same date, to an address on Castlegate Drive in Charlotte, North Carolina. The trial court entered an order on 17 September 2007 renewing the DVPO for two years, valid until 18 October 2009. A handwritten notation on the order states, "[defendant] not present," and the certificate of service signed by a deputy clerk indicates that defendant was served by mail.
Based on an incident that occurred on 15 March 2009, defendant was charged with felonious violation of a domestic violence protective order and domestic criminal trespass in indictments issued on 18 May 2009. The matter came on for trial on 10-11 September 2009 in Superior Court. From the evidence presented at trial, the following facts emerge: On the evening of 15 March 2009, Ms. Moss heard someone hit the side of her house, and about 15 minutes later she heard someone run by a window. She looked outside and discovered that her motion-activated security lights had turned on. About 30 minutes after that, she heard someone tapping on the window of her son's room. She called 911 and gave them information about defendant and about the restraining order, although she had not seen anyone yet. After she placed the call, she looked outside and saw defendant on her front porch, still knocking on the same window. She called 911 again to alert police of defendant's presence. Two police officers arrived shortly afterwards, and observed defendant on the side of the house tapping on the window. The officers arrested defendant.
With regard to the DVPO, Ms. Moss testified that the order which had been renewed on 18 September 2007 was still in place when defendant appeared at her house on 15 March 2009. She remembered four or five hearings on restraining orders, and recalled that defendant was present at the first two hearings. She stated that defendant was not present at the 18 September 2007 hearing. Ms. Moss testified that the 2007 motion to renew was mailed to defendant's father's house where defendant had lived since they had separated and "where everything else has gone to that he's gotten." On previous occasions, although not at the 2007 hearing, defendant's father had come to court in response to matters served on defendant at the father's address. With regard to the 2007 motion to renew, Ms. Moss stated that she had given the stamped, addressed envelope to the clerk of court to mail.
Ms. Moss also testified that on 1 April 2008, she and defendant were in court because defendant had violated the DVPO. She stated that the trial judge informed defendant that the protective order was still in effect, and told defendant he needed to leave Ms. Moss alone. She did not remember seeing the judge or anyone else give defendant a copy of the protective order on that date. Testimony was also elicited from Ms. Moss that defendant had called her in the past, and she had told him he was not allowed to contact her or come to the house. Sometime after the DVPO was renewed in 2007, Ms. Moss informed defendant over the telephone that the protective order was still in place.
Defendant did not present any evidence. After the State rested its case, defendant moved to dismiss the charges, which was denied by the trial court. After deliberation, the jury returned verdicts of guilty of violation of a domestic violence protective order and of domestic criminal trespass. Defendant stipulated to the existence of two prior domestic violence protective order violations. The trial court determined that defendant was a prior record level IV offender based on nine prior record level points. The court consolidated the two offenses for judgment and sentenced defendant to an active term of 9 to 11 months imprisonment. From the judgment entered, defendant appeals.
Analysis
Defendant contends that the trial court erred in denying his motion to dismiss because the State failed to present sufficient evidence that defendant was properly served with the 2007 order renewing the DVPO, or that he knew that the DVPO was still in place on 15 March 2009, when the incident giving rise to the charges allegedly occurred. We find no merit in defendant's arguments.
When a trial court is faced with a motion to dismiss for lack of sufficient evidence, the court must determine whether the State has presented substantial evidence (1) of each essential element of the offense charged or a lesser included offense and (2) of defendant's identity as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "`Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Jarrett, 137 N.C. App. 256, 262, 527 S.E.2d 693, 697 (2000) (quoting State v. Jacobs, 128 N.C. App. 559, 563, 495 S.E.2d 757, 760-61, disc. review denied, 348 N.C. 506, 510 S.E.2d 665 (1998)). Upon appellate review, we are compelled to view the evidence in the light most favorable to the State, with all reasonable inferences to be drawn therefrom. State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002). Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal of the case. Id.
The North Carolina General Statutes provide in relevant part:
(a) Except as otherwise provided by law, a person who knowingly violates a valid protective order entered pursuant to this Chapter [50B] . . . shall be guilty of a Class A1 misdemeanor.
. . .
(f) . . . [A]ny person who knowingly violates a valid protective order as provided in subsection (a) of this section, after having been previously convicted of two offenses under this Chapter, shall be guilty of a Class H felony.
N.C. Gen. Stat. § 50B-4.1(a), (f) (2009) (emphasis added).
Defendant does not contest the validity of the order itself, or that he violated it. Rather, he argues that the State failed to prove that he "knowingly" violated the DVPO by failing to show that he knew of the existence of the 2007 renewed order. Our Supreme Court has defined "knowledge" as follows:
Knowledge is a mental state that may be proved by offering circumstantial evidence to prove a contemporaneous state of mind. Jurors may infer knowledge from all the circumstances presented by the evidence. It "may be proved by the conduct and statements of the defendant, by statements made to him by others, by evidence of reputation which it may be inferred had come to his attention, and by [other] circumstantial evidence from which an inference of knowledge might reasonably be drawn."
State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989) (quoting State v. Boone, 310 N.C. 284, 294-95, 311 S.E.2d 552, 559 (1984).
Here, the record indicates that a DVPO has been in place continuously since October 2002, and that defendant was present for at least two of the hearings on the motions to renew, in October 2003 and in October 2005. For the final renewal which occurred in September 2007, the record shows that defendant had been sent notice of the hearing to an address on Castlegate Drive in Charlotte. Ms. Moss testified that this was where defendant had lived since they split up, and it was the address to which all previous papers had been sent. The evidence further showed that between entry of the 2007 renewed protective order and 15 March 2009, Ms. Moss told defendant not to come to her home and that the order was still in place. Further, defendant was present at a hearing on 1 April 2008 for a prior violation of the order, and the trial judge informed defendant that the order was still in effect on that date.
Viewing all the evidence in the light most favorable to the State, we find that sufficient evidence was presented from which the jury could infer that defendant had knowledge of the existence of the 2007 protective order, an order which was valid for two years from the date it was renewed. Although defendant argues that the State failed to show he had specific knowledge of the order's existence on 15 March 2009, and that the evidence only shows he had knowledge of it at some unknown earlier time, we do not find that such specificity is part of the State's burden. Therefore, we conclude that the trial court did not err in denying defendant's motion to dismiss.
No error.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).