Opinion
No. COA12–1508.
2013-06-4
STATE of North Carolina v. John DASH.
Attorney General Roy Cooper, by Special Deputy Attorney General Daniel S. Hirschman, for the State. Ryan McKaig for Defendant–Appellant.
Appeal by Defendant from judgment entered 15 June 2012 by Judge W. Robert Bell in Superior Court, Mecklenburg County. Heard in the Court of Appeals 14 May 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Daniel S. Hirschman, for the State. Ryan McKaig for Defendant–Appellant.
McGEE, Judge.
John Dash (Defendant) was found guilty by a jury of misdemeanor violation of a domestic violence protective order (DVPO) under N.C. Gen.Stat. § 50B–4.1(a). Defendant appeals.
The DVPO against Defendant in favor of Varene Smalls (Ms. Smalls) recognized that Ms. Smalls possessed the residence at 1129 Greenway Crescent Lane, Apartment 104, in Charlotte. The DVPO provided:
1. [D]efendant shall not assault, threaten, abuse, follow, harass (by telephone, visiting the home or workplace or other means), or interfere with [Ms. Smalls]....
4. [Ms. Smalls] is granted possession of, and [D] efendant is excluded from, the parties' residence described above and all personal property located in the residence except for [D]efendant's personal clothing, toiletries and tools of trade....
6. [D]efendant is entitled to get personal clothing, toiletries, and tools of trade from the parties' residence. A law enforcement officer shall assist [D] efendant in returning to the residence to get these items....
7. [D] efendant shall stay away from [Ms. Smalls'] residence[.]
The warrant alleged Defendant violated the DVPO “by going to [the] victim's place of residence approximately 100 feet from the victim's residence.”
Charlotte–Mecklenburg Police Officer Matt Mescan (Officer Mescan) testified that he saw Defendant sitting in a parked car outside Ms. Smalls' residence. When Officer Mescan asked Defendant why Defendant was there, Defendant “said something about getting his mail[.]” Defendant offered no evidence at trial.
During deliberations, the jury asked: “Are we considering the entire order, or just # 7 as stated by both the State and the Defense in closing arguments?” The trial court gave the following instruction:
THE COURT: [T]he State presented certain evidence during the course of this trial, if you find that evidence believable, credible, and you give it any weight, then you are to consider that in the context of the entire protective order in making your determination as to whether—as to the guilt or innocence of ... Defendant.
Defendant argues the trial court erred in “failing to properly instruct the jury that it should only consider Order 7 in the [DVPO][.]” Defendant further argues the instruction “raised the possibility that the jury found [Defendant] guilty based on a theory that was never charged or argued and which was unsupported by the evidence.”
Defendant appears to concede he failed to preserve the issue. “In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R.App. P. 10(a)(1).
The transcript shows that, when the trial court considered the above instruction, Defendant argued the jury should be limited to considering the allegations in the warrant. By making a timely request and stating the grounds, Defendant preserved the argument that the instruction allowed the jury to convict Defendant on a theory that was not charged.
However, Defendant failed to preserve for review the argument that the instruction allowed the jury to convict Defendant based on a theory unsupported by the evidence. Defendant did not argue at trial that the instruction was not supported by the evidence.
Even assuming arguendo, without deciding, that the argument that the instruction was unsupported by evidence is preserved, the argument is unavailing. Defendant cites State v. Boyd, ––– N.C.App. ––––, ––––, 714 S.E.2d 466 (2011) for support. In Boyd, the trial court instructed the jury it could convict the defendant if it found the defendant “removed a person from one place to another.” Boyd, ––– N.C.App. at ––––, 714 S.E.2d at 471. However, no evidence was presented showing the defendant removed the victim, and this Court held the defendant's right to a unanimous jury verdict was violated by the “removal instruction.” Boyd, ––– N.C.App. at ––––, 714 S.E.2d at 472.
In this case, by contrast, evidence was presented supporting findings that Defendant violated other provisions in the DVPO. The presence of Defendant in his vehicle outside Ms. Smalls' residence may support a finding that Defendant violated provision 1, prohibiting Defendant from following or harassing Ms. Smalls; provision 4, excluding Defendant from the parties' residence; provision 6, requiring Defendant have a law enforcement officer assist Defendant in retrieving personal clothing, toiletries, and tools of trade; and provision 7, ordering Defendant to stay away from Ms. Smalls' residence. The trial court's instruction did not raise the possibility that the jury convicted Defendant based upon a theory unsupported by the evidence.
Moreover, the instructions did not raise the possibility that the jury convicted Defendant on a theory that was not charged. The warrant alleged Defendant violated the DVPO by “going to [the] victim's place of residence approximately 100 feet from the victim's residence.” The warrant does not quote provision 7 of the DVPO and may refer to provisions 1, 4, and 6. Defendant has failed to show the trial court erred in its instructions. We must hold the trial court did not err in its instructions to the jury in response to the jury's question.
No error. Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).