Opinion
No. COA10-643
Filed 1 March 2011 This case not for publication
Appeal by defendant from judgments entered 15 January 2010 by Judge J. Gentry Caudill in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State. Robert W. Ewing for defendant.
Mecklenburg County No. 08 CRS, 013223.
On 15 January 2010, Bennie Kerley (defendant) was found guilty of three counts of criminal contempt and received three 30-day sentences in the custody of the Mecklenburg County Sheriff's Department, to be served consecutively. Defendant now appeals. After careful consideration, we vacate the judgments.
Peggy Honsinger alleged that defendant had violated a domestic violence protective order entered against defendant on 21 June 2006 and renewed on 21 June 2007 through 21 June 2009. Honsinger alleged that defendant had violated the protective order by placing handmade signs addressing or referencing Honsinger on a public street; some of those signs also contained copies of photographs of Honsinger that had been found in defendant's possession during an earlier hearing. Honsinger also alleged that defendant had placed an envelope with a card inside it on the windshield of her car while it was parked outside her home. A show cause hearing was held in district court, and the district court judge entered an order finding defendant in contempt of court. Defendant appealed that order to the superior court, which held a de novo hearing. At the conclusion of the hearing, the superior court found defendant to have violated the protective order three times, and it sentenced defendant to thirty days' imprisonment for each violation. The superior court then signed and filed three criminal judgments finding defendant guilty of criminal contempt. Defendant now appeals, arguing that the trial court's findings of fact do not support its conclusions of law. We agree.
Section 5A-11 of our General Statutes sets out the grounds for criminal contempt, including "[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) (2009). In the context of criminal contempt, the term "willfulness" means "an act done deliberately and purposefully in violation of law, and without authority, justification, or excuse," something "more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law." State v. Phair, 193 N.C. App. 591, 594, 668 S.E.2d 110, 112 (2008 (quotations and citations omitted).
Sections 5A-13, -14, and -15 set out the procedural requirements of pursuing an indirect contempt charge, which include a hearing. N.C. Gen. Stat. § 5A-13, -14, -15 (2009). "At the conclusion of the hearing, the judge must enter a finding of guilty or not guilty. If the person is found to be in contempt, the judge must make findings of fact and enter judgment. The facts must be established beyond a reasonable doubt." N.C. Gen. Stat. § 5A-15(f) (2009). Although the statute itself does not contain a requirement that the judge enter a written order, this Court has interpreted this section to require the trial judge to "make findings of fact beyond a reasonable doubt, and enter a written order." State v. Coleman, 188 N.C. App. 144, 148, 655 S.E.2d 450, 452-53 (2008) (citing N.C. Gen. Stat. § 5A-15(f) (2005)).
Our standard of review is limited to determining
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. 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. Simon, 185 N.C. App. 247, 250, 648 S.E.2d 853, 855 (2007) (quotations and citations omitted).
Here, the trial judge entered a judgment and made oral findings of fact, but he did not enter a written order or make written findings of fact. See State v. Gary, 132 N.C. App. 40, 42, 510 S.E.2d 387, 388 (1999) ("`Entry' of an order occurs when it is reduced to writing, signed by the trial court, and filed with the clerk of court.") (citations omitted). Nevertheless, even if we consider the judgment and oral findings sufficient to comply with Coleman's interpretation of section 5A-15, the oral findings of fact do not support the conclusions of law.
The trial court made the following oral findings of fact and conclusions of law:
As to the conduct involving the card on the windshield, the Court finds that the date [to] which that testimony refers is the 23rd of September of 2007, as described by Ms. Honsinger. And the [C]ourt, having heard that testimony, the arguments of counsel, finds that the State has shown beyond a reasonable doubt or finds proof beyond a reasonable doubt that the defendant was — committed that act and, therefore, in contempt of Court in regard to that incident.
As to the two incidents involving the signs described by the testimony of Ms. Foster, the sister of Ms. Honsinger, and other witnesses, the Court finds that given the nature of what was stated in the wording of the signs and the photographs on the signs having been in the possession of the
defendant, the Court finds the evidence shows beyond a reasonable doubt that the defendant committed those acts and in contempt of Court as to those two occasions.
The Court would — based upon those findings regarding the three incidents, the Court has found beyond a reasonable doubt that it's been shown the defendant is in contempt of Court; that the probationary sentence in 07-CRS-208485, that the defendant willfully violated the conditions of that sentence and that sentence is revoked.
The only factual finding here is that the "card on the windshield" incident occurred on 23 September 2007. The trial court did not state any other findings of fact that would support its legal conclusions that defendant committed the acts in question. See State ex rel. Utilities Comm. v. Public Staff, 322 N.C. 689, 693, 370 S.E.2d 567, 570 (1988) ("Matters of judgment are not factual; they are conclusory and based ultimately on various factual considerations. Facts are things in space and time that can be objectively ascertained by one or more of the five senses or by mathematical calculation. Facts, in turn, provide the bases for conclusions."). The trial court also failed to find that defendant had willfully violated the protective order, which is a fatal defect. See Smith v. Smith, 247 N.C. 223, 225, 100 S.E.2d 370, 371-72 (1957) (holding that a trial court's contempt order is "fatally defective" when it is "not supported by a finding of fact that the conduct of the [condemnor] in failing or refusing to [comply with a court order] was willful"); Gorrell v. Gorrell, 264 N.C. 403, 403, 141 S.E.2d 794, 795 (1965) ("The order attaching defendant for contempt is fatally defective in that it is not supported by a finding of fact that defendant's failure to make the required payments was wilful.")
Our limited review prevents us from making our own findings of fact to support the trial court's legal conclusions. In re Estate of Lunsford, 160 N.C. App. 125, 132, 585 S.E.2d 245, 250 (2003) ("It is not the role of this Court to consider what the trial court could have found or to make our own findings based on our review of the record."), rvs'd on other grounds, 359 N.C. 382, 610 S.E.2d 366 (2005). In addition, "we find no precedent or legal authority permitting us to remand for additional findings of fact by the trial court in an indirect criminal contempt matter." Coleman, 188 N.C. App. at 151-52, 655 S.E.2d at 454. Accordingly, we vacate the contempt judgments.
Vacated.
Judges HUNTER, Robert C., and CALABRIA concur.
Report per Rule 30(e).