Opinion
No. COA12–985.
2013-05-7
STATE of North Carolina v. Anthony Dwayne HAIRSTON, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Anne Goco Kirby, for the State. Parish & Cooke, by James R. Parish, for defendant-appellant.
Appeal by defendant from judgments entered 28 March 2012 by Judge A. Moses Massey in Rockingham County Superior Court. Heard in the Court of Appeals 12 December 2012. Attorney General Roy Cooper, by Assistant Attorney General Anne Goco Kirby, for the State. Parish & Cooke, by James R. Parish, for defendant-appellant.
GEER, Judge.
Defendant Anthony Dwayne Hairston appeals from his conviction of violating a domestic violence protective order (“DVPO”) and intimidating a witness. On appeal, defendant primarily argues that the trial court erred in granting the State's motion to amend the indictment for violation of a DVPO to properly allege a felony by splitting the existing indictment into two separate counts. Defendant contends that the amendment substantially altered the charged offense and, therefore, was impermissible. We hold, under State v. Stephens, 188 N.C.App. 286, 655 S.E.2d 435 (2008), that the amendment did not substantially alter the indictment, and the trial court did not, therefore, err in granting the State's motion to amend. Because we find defendant's remaining arguments unpersuasive, we conclude defendant received a trial free from prejudicial error.
Facts
The State's evidence tended to show the following facts. Defendant and Gloria Herbin were divorced in 2006. On 1 August 2007, Ms. Herbin obtained a DVPO that prohibited defendant from assaulting, threatening, abusing, following, or harassing her or her children and additionally required defendant to stay away from Ms. Herbin's residence and place of work. On 30 January 2008, an order was entered renewing the DVPO until 1 February 2010. On 3 February 2010, another order was entered renewing the DVPO until 1 February 2012. On approximately five or six occasions between 1 August 2007 and 7 April 2011, defendant went to Ms. Herbin's home at about 2:00 or 3:00 a.m., looked into the windows and, once sighted by Ms. Herbin, ran away. The police were called and responded to Ms. Herbin's home on those occasions.
Ms. Herbin's birthday was 7 April 2011. After nightfall, Ms. Herbin was sitting in her house in Eden, North Carolina when she heard noises that sounded like someone walking on the leaves in her backyard near the kitchen door. She looked through the closed, screened, kitchen door and saw defendant standing at the edge of her kitchen steps. She was able to clearly see defendant because the back porch light was on. When Ms. Herbin made eye contact with defendant, defendant turned and ran behind a neighboring house. Ms. Herbin immediately closed and locked her kitchen door and called 911 to report the incident. Police officers responded and searched the area, but did not locate defendant.
After the responding officers left, at approximately 10:00 p.m., Ms. Herbin called Lieutenant Clint Simpson of the Eden Police Department to inform him of the incident. Lieutenant Simpson had been involved with Ms. Herbin's case since 2007, and Ms. Herbin kept him informed of incidents involving defendant. Lieutenant Simpson told Ms. Herbin to write a statement regarding the incident and provide it to the police the next day. Ms. Herbin stayed up all night because defendant had threatened to kill her and her children when she and defendant separated.
The next morning, on 8 April 2011, Ms. Herbin delivered her statement to Lieutenant Simpson at the police department. Based on that statement, Lieutenant Simpson that morning obtained a warrant for defendant's arrest. Later that day, Lieutenant Simpson called defendant and told defendant he needed to speak with him. Defendant claimed he was at work in Greensboro, North Carolina and would return to Eden at 7:00 p.m.
Shortly thereafter, defendant called Lieutenant Simpson back and asked what the officer needed to talk with him about. The officer replied that it was about Ms. Herbin, and defendant immediately responded, “I haven't been over there.” Lieutenant Simpson told defendant that Ms. Herbin had filed a report and the officer needed to speak with him about it. Defendant promised to call the officer back when defendant returned to Eden.
At approximately 5:15 p.m., defendant again called Lieutenant Simpson. Defendant said he was not yet in Eden, but wanted to know if the officer “was going to lock him up.” Lieutenant Simpson explained that Ms. Herbin had reported that defendant had come to her residence the previous night. Defendant asked: “How would that look?” The officer responded that he had obtained a warrant for defendant's arrest, and defendant needed to speak with him when defendant returned to Eden.
Meanwhile, Ms. Herbin had gone out for a belated birthday celebration. At approximately 6:08 p.m., as Ms. Herbin drove down N.C. Highway 14, she passed defendant in her car as defendant was leaving a Cookout restaurant parking lot. Defendant was driving his truck, and as Ms. Herbin passed, defendant looked directly into her face.
Defendant followed Ms. Herbin down Highway 14. When she sped up to get away from him, defendant sped up. When she switched lanes, defendant switched lanes. When she slowed down, he slowed down. As defendant continued following Ms. Herbin “bumper-to-bumper,” Ms. Herbin feared for her life and called 911 to report she was being chased. Defendant then pulled alongside Ms. Herbin in the left lane of the two-lane road and began to repeatedly beat his closed fist into his other, open palm, and Ms. Herbin read his lips as he mouthed to her to pull over and pointed to the right shoulder of the road.
After defendant realized Ms. Herbin was not going to pull over, he twice swerved his truck towards her car, causing her to swerve off the road both times to avoid a collision. Ms. Herbin remained on the phone with 911, and when defendant saw she was on the phone, he turned off of Highway 14. Ms. Herbin was afraid defendant would drive to her home where her teenage son was at the time, so she turned around and arranged to have a police officer meet her at her house. When Ms. Herbin arrived home, an officer was waiting, and she filed a report regarding the incident.
Lieutenant Simpson was informed about the incident, and, at 7:20 p.m., he called defendant. When defendant again claimed he had not yet returned to Eden, Lieutenant Simpson replied that he knew defendant had been in Eden because of the Highway 14 incident. Defendant then said “that he just wanted to talk to her.” Lieutenant Simpson told defendant “that was a violation, as well, of the protective order,” and defendant had 30 minutes to turn himself in.
At about 7:40 p.m., defendant called Lieutenant Simpson back and said “he was sorry for not telling [Lieutenant Simpson] the truth and that he just wanted to speak with Ms. Herbin and that he just gave her something else to say in court.” Lieutenant Simpson and another officer arrested defendant at his home at approximately 8:00 p.m.
Defendant was indicted for two counts of felony violation of a DVPO (based on the 7 April 2011 incident at Ms. Herbin's home and on the 8 April 2011 Highway 14 incident), for domestic criminal trespass on 7 April 2011, for intimidating a witness on 8 April 2011, and for felony obstruction of justice. The indictments for the 7 April 2011 violation of a DVPO, domestic criminal trespass, and felony obstruction of justice are mentioned in the transcript but not included in the record on appeal. The State dismissed the obstruction of justice charge prior to trial.
At trial, during direct examination of the State's first witness, defense counsel argued that the indictments charging defendant with violation of a DVPO were fatally invalid. The indictment charging a violation of a DVPO on 8 April 2011 alleged in relevant part:
The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully, and feloniously did KNOWINGLY VIOLATE A VALID PROTECTIVE ORDER ENTERED PURSUANT TO CHAPTER 50B OF THE GENERAL STATUTES. THE DEFENDANT VIOLATED A VALID PROTECTIVE ORDER ISSUED ON FEBRUARY 3, 2010, BY THE HONORABLE JUDGE JAMES ANTHONY GROGAN, DISTRICT COURT JUDGE, ROCKINGHAM COUNTY DISTRICT COURT, FILE NUMBER 07CVD1358, BY FOLLOWING AND HARRASSING THE VICTIM, (GLORIA HERBIN), WHILE BOTH THE VICTIM AND DEFENDANT WERE TRAVELING IN SEPARATE MOTOR VEHICLES, ON HIGHWAY 14 FROM EDEN TO HARRISON CROSSROADS. THE DEFENDANT HAS PREVIOUSLY BEEN CONVICTED OF TWO OFFENSES UNDER CHAPTER 50B OF THE GENERAL STATUTES, NAMELY: FELONY VIOLATION OF A CIVIL DOMESTIC VIOLENCE PROTECTIVE ORDER, N.C.G.S. 50B–4.1(F), IN THE SUPERIOR COURT OF ROCKINGHAM COUNTY, NORTH CAROLINA, ON NOVEMBER 9, 2009, IN FILE NUMBER 09CRS54343 AND FELONY VIOLATION OF A CIVIL DOMESTIC VIOLENCE PROTECTIVE ORDER, N.C.G.S. 50B–4. 1(F), IN THE SUPERIOR COURT OF ROCKINGHAM COUNTY ON JULY 9, 2009, IN FILE NUMBER 08CRS52926.
Defendant contended that the indictment violated N.C. Gen.Stat. § 15A–928 (2011). N.C. Gen.Stat. § 15A–928 provides in part that when the fact that a defendant has previously been convicted of an offense raises an offense from a lower grade to one of higher grade and thereby becomes an element of the higher grade offense, the previous conviction must be alleged either in an indictment separate from the indictment of the charged offense or must be included in a separate count of the principal indictment. Further, if a defendant admits the prior conviction, that element of the charged offense is established, and no evidence may be presented by the State to prove it. N.C. Gen.Stat. § 15A–928 (c)(1).
The State orally moved to amend the indictment charging the 8 April 2011 violation of a DVPO such that it alleged two separate counts, with the first count consisting of the language beginning with “KNOWINGLY” and ending with “HARRISON CROSSROADS.” The second count began with “THE DEFENDANT HAS PREVIOUSLY” and contained the remaining language in the indictment. The trial court granted the State's motion to amend the indictment such that the words “count one:” were inserted before the word “KNOWINGLY,” and the words “count two:” were inserted after the word “CROSSROADS.”
After the trial court granted the State's motion to amend, the court explained to defendant the consequences of admitting or denying the charges, and defendant stated that he understood and had discussed it with his attorney. Upon the court's questioning, defendant acknowledged that he had seen the indictments alleging the prior convictions and agreed that the State had provided him with “appropriate notice of the[ ] aggravating factors.” Defendant then admitted the prior convictions, and the trial court found the admission to be “freely, voluntarily, and understandingly” given. Defendant further stipulated at trial that a valid DVPO was in effect at the time of the charged offenses. Defendant did not present evidence.
The jury found defendant not guilty of domestic criminal trespass and of one charge of violating a DVPO (based on the 7 April 2011 incident). The jury found defendant guilty of the second charge of violating a DVPO (based on the 8 April 2011 incident) and of intimidating a witness. The trial court sentenced defendant to a presumptive-range term of 10 to 12 months imprisonment for violation of a DVPO and sentenced defendant to a consecutive, presumptive-range term of 10 to 12 months imprisonment for intimidating a witness. Defendant timely appealed to this Court.
I
Defendant first argues that the trial court erred in granting the State's motion to amend the indictment for the 8 April 2011 violation of a DVPO by separating the allegations into two counts. There is no dispute that the original indictment violated N.C. Gen.Stat. § 15A–928. Defendant contends, however, that the amendment substantially altered the charged offense; that the grand jury never indicted defendant on the second count and the trial court, therefore, had no jurisdiction over the second count; and that since the original indictment alleged only a misdemeanor violation of a DVPO, the trial court erred in sentencing defendant for a class H felony.
N.C. Gen.Stat. § 15A–923(e) (2011) provides that “[a] bill of indictment may not be amended.” Our Supreme Court “has interpreted that provision to mean a bill of indictment may not be amended in a manner that substantially alters the charged offense.” State v. Silas, 360 N.C. 377, 380, 627 S.E.2d 604, 606 (2006). “In determining whether an amendment is a substantial alteration, we must consider the multiple purposes served by indictments, the primary one being ‘to enable the accused to prepare for trial.’ “ Id. (quoting State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600 (2003)).
In Stephens, the defendant was convicted of felony stalking. 188 N.C.App. at 288, 655 S.E.2d at 437. The original indictment in Stephens alleged, in a single count, that the defendant had stalked the victim and that the defendant had previously been convicted of a stalking offense. Id. at 287, 655 S.E.2d at 436. Under the applicable statute, if a person committed a stalking offense after already having been convicted of a stalking offense, then the second stalking offense constituted a felony. Id. at 289, 655 S.E.2d at 437 (citing N.C. Gen.Stat. § 14–277.3(a), (b) (2005)). In Stephens, prior to the jury being impaneled, the State moved to amend the indictment and thereby bring it “into compliance with section 15A–928 by (1) striking the allegation of the prior offense from the existing single count; and (2) adding the second count which alleged defendant's prior conviction for misdemeanor stalking.” Id. at 291, 655 S.E.2d at 438–39.
On appeal, this Court rejected the defendant's argument that the amendment to the indictment separating the existing allegations into two separate counts amounted to a substantial alteration of the charge. Id. at 288, 655 S.E.2d at 437. The Court reasoned that “[n]one of the specific allegations against defendant were [sic] changed—the last two sentences of the [original] indictment were simply put into a separate count, as permitted by section 15A–928(b) .” Id. at 292, 655 S.E.2d at 439.
In addition, the Court in Stephens found, based on the record before it, that “defendant was aware of the charge against him, including the fact that his prior conviction for misdemeanor stalking was to be used as an element of the instant charge.” Id . at 293, 655 S.E.2d at 439. The record in Stephens showed that the trial court had explained to the defendant, both before and after the indictment was amended, how evidence of his prior conviction for stalking could be introduced and admitted; the defendant stated that he understood the process; the defendant admitted the prior conviction outside the presence of the jury; and the trial court found the admission was “freely, voluntarily, and understandingly” given. Id. at 290–91, 655 S.E.2d at 438.
Ultimately, the Court in Stephens held:
[T]he trial court's allowing of the amendment to the indictment, by separating the existing allegation into two, separate counts, did not constitute a substantial alteration of the charge against defendant. The amendment merely was a change in form. Defendant had ample notice that he was being tried for felony stalking and which prior conviction was being alleged. Further, the trial court complied with the requirements of section 15A–928(c), in that defendant was given the opportunity to admit to the prior conviction outside of the jury, thereby preventing the jury from hearing evidence regarding the conviction.
Id. at 293, 655 S.E.2d at 440.
This case is materially indistinguishable from Stephens. As in Stephens, the State moved to amend the existing allegations in the indictment by splitting the language into two separate counts. The only alteration to the wording of the indictment was the adding of the words “count one” and “count two.” The record shows defendant had ample notice (1) that he was being tried for felony violation of a DVPO and (2) which prior convictions were the basis for the felony charge. Moreover, defendant was given, and took, the opportunity to admit the prior convictions outside the presence of the jury, thereby precluding the State from presenting evidence of the prior convictions. Consequently, as in Stephens, the amendment did not substantially alter the indictment.
Defendant, however, argues that Stephens is inapplicable because, in Stephens, the State moved to amend the indictment before the jury was impaneled while, in this case, “jeopardy had attached on the ... indictment.” Defendant cites no authority—and we have found none—providing that an indictment cannot be amended after the jury has been impaneled. Rather, this Court has upheld orders granting motions to amend indictments made after the juries were impaneled. See, e.g., State v. White, 202 N.C.App. 524, 531, 689 S.E.2d 595, 599 (2010) (holding trial court did not err in allowing State's motion, made following jury verdict, to amend indictment); State v. Brady, 147 N.C.App. 755, 759, 557 S.E.2d 148, 150–51 (2001) (holding trial court did not err in allowing State's motion, made after jury impaneled, to amend indictment).
Moreover, as explained by the Court in Stephens,
“ [t]he purpose of [section 15A–928], which is for the benefit of defendants charged with prior convictions, is not to require that the procedures referred to therein be accomplished at a certain time and no other, which would be pointless. Its purpose is to insure that defendants are informed of the prior convictions they are charged with and are given a fair opportunity to either admit or deny them before the State's evidence is concluded; because, as the statute makes plain, if the convictions are denied, the State can then present proof of that element of the offense to the jury, but cannot do so if the prior convictions are admitted.”
188 N.C.App. at 291–92, 655 S.E.2d at 439 (emphasis added) (quoting State v. Ford, 71 N.C.App. 452, 454, 322 S.E.2d 431, 432 (1984)). This reasoning suggests that the fact the amendment in this case occurred after the jury was impaneled is immaterial.
Defendant also points to State v. Moses, 154 N.C.App. 332, 572 S.E.2d 223 (2002), in support of his claim that the indictment was improperly amended. In Moses, the defendant was charged with operation of a motor vehicle to elude arrest which, if alleged alone, is a misdemeanor, but, if alleged along with two aggravating factors, is elevated to a felony. Id. at 338, 572 S.E.2d at 228. The original indictment against the defendant charged only one aggravating factor but, at the close of the State's evidence, the trial court granted the State's motion to amend the indictment to allege a second aggravating factor. Id. The Court held that “adding an aggravating factor in this case, which resulted in a misdemeanor charge being elevated to a felony, substantially altered the charge in the original indictment.” Id.
However, the Court in Stephens distinguished Moses on grounds equally applicable to this case. The Court in Stephens explained:
Unlike in Moses, the allegation of defendant's prior conviction was included in the original ... indictment, albeit in the same count as the allegation regarding the stalking offense. Therefore, defendant was on notice of the charge against him and the fact that the State intended to prove that he previously had been convicted of misdemeanor stalking. Defendant had ample notice of the charge against him, and had an opportunity to prepare his defense.
188 N.C.App. at 293, 655 S.E.2d at 439. Likewise, the prior convictions here were included in the original indictment and defendant specifically acknowledged that the State had provided him with appropriate notice of its intent to rely upon those prior convictions.
Stephens, and not Moses, controls our decision here. We hold that the trial court did not err in granting the State's motion to amend the indictment, that the court had jurisdiction over both counts in the indictment, and that the court did not err in sentencing defendant for a class H felony.
II
Defendant next argues that the trial court erred in denying his motion to dismiss the charges of violating a DVPO and of intimidating a witness, both arising out of the 8 April 2011 Highway 14 incident. “ ‘Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
We first address the charge that defendant intimidated a witness in violation of N.C. Gen.Stat. § 14–226 (2011). That statute provides in relevant part:
If any person shall by threats, menaces or in any other manner intimidate or attempt to intimidate any person who is summoned or acting as a witness in any of the courts of this State, or prevent or deter, or attempt to prevent or deter any person summoned or acting as such witness from attendance upon such court, the person shall be guilty of a Class G felony.
N.C. Gen.Stat. § 14–226(a) (emphasis added).
Here, defendant concedes his alleged conduct was threatening, but argues that there was no court date or “court pending” at the time defendant threatened Ms. Herbin. Accordingly, defendant contends, the State did not present substantial evidence that defendant's purpose in intimidating Ms. Herbin was to attempt to prevent her from coming to court.
“The gist” of the offense of intimidating a witness is “the obstruction of justice.” State v. Neely, 4 N.C.App. 475, 476, 166 S.E.2d 878, 879 (1969). “ ‘It is immaterial, therefore, that the person procured to absent himself was not regularly summoned or legally bound to attend as a witness.’ “ Id. at 477, 166 S.E.2d at 879 (quoting 39 Am.Jur. Obstructing Justice § 6).
In Neely, the witness testified during the defendant's first trial in City Recorder's Court. Id. at 475, 166 S.E.2d at 878. Following the defendant's conviction and appeal for trial de novo in superior court, the defendant threatened the witness. Id. The defendant was then charged and convicted of intimidating a witness. Id. at 476, 166 S.E.2d at 878. On appeal, the defendant argued that the superior court should have dismissed the charge because, when the threat was made, the witness had already completed his testimony in the first trial and was not under a subpoena to testify in the superior court trial. Id.
The Neely Court rejected the defendant's argument, explaining that the witness “was in the position of being a prospective witness” because, at the time of the threat, the defendant had already appealed for trial de novo and the defendant was trying to prevent the witness from testifying in the superior court trial. Id., 166 S.E.2d at 879.
Similarly, here, the State's evidence showed Ms. Herbin filed a report against defendant for violation of a DVPO and, based on that report, Lieutenant Simpson obtained a warrant for defendant's arrest on the morning of 8 April 2011. Lieutenant Simpson informed defendant of the report and warrant for defendant's arrest roughly one hour before the incident in which defendant threatened Ms. Herbin on Highway 14. When Lieutenant Simpson confronted defendant about the incident later in that evening, defendant stated “ ‘that he just wanted to speak with Ms. Herbin and that he just gave her something else to say in court.’ “ As in Neely, when viewed in the light most favorable to the State, there was substantial evidence here that defendant threatened a prospective witness in an attempt to prevent her from testifying in court. The trial court, therefore, properly denied the motion to dismiss the charge of intimidating a witness.
With respect to the charge that defendant violated a DVPO, N.C. Gen.Stat. § 50B–4.1(f) (2011) provides in relevant part:
Unless covered under some other provision of law providing greater punishment, any person who knowingly violates a valid protective order ..., after having been previously convicted of two offenses under this Chapter, shall be guilty of a Class H felony.
Defendant stipulated at trial that a valid DVPO was in place on the date of the charged offense and further admitted he had two prior convictions for violation of a DVPO.
Defendant argues on appeal, however, that the State failed to present substantial evidence that he had actual or constructive notice of the valid DVPO's existence at the time he threatened Ms. Herbin on Highway 14. Therefore, defendant reasons, the State failed to present substantial evidence that defendant knowingly violated the order.
As provided in N.C. Gen.Stat. § 50B–4.1(f), a defendant is guilty if the violation of a DVPO is committed “knowingly.” For that reason, defendant's citation to State v. Whittle, 118 N.C.App. 130, 135, 454 S.E.2d 688, 691 (1995), addressing the definition of “willfully,” is beside the point.
“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), superseded by statute on other grounds as stated in State v. Oates, ––– N.C. ––––, 732 S.E.2d 571 (2012)).
Here, the jury could infer that defendant knew the DVPO was in place from his statements to Lieutenant Simpson on 8 April 2011. When defendant initially asked Lieutenant Simpson why the officer needed to speak with him, the officer stated it was about Ms. Herbin, and defendant immediately responded: “ ‘I haven't been over there.’ “ This statement suggested that defendant was aware that an order existed requiring him to stay away from Ms. Herbin's residence. The officer then told defendant Ms. Herbin filed a report. Defendant called the officer back and asked whether the officer “ ‘was going to lock him up.’ “ When Lieutenant Simpson responded that Ms. Herbin's report stated defendant had come to her residence the previous night, defendant asked, “ ‘How would that look?’ “
Later, following the Highway 14 incident, Lieutenant Simpson called defendant and told defendant he knew about what happened on Highway 14 to which defendant responded “ ‘that he just wanted to talk to her.’ “ Lieutenant Simpson replied that “that was a violation, as well, of the protective order.” Defendant later called Lieutenant Simpson back and stated that “ ‘he just wanted to speak with Ms. Herbin and that he just gave her something else to say in court.’ “ This conversation also suggested that defendant was aware of the existence of a DVPO.
In addition, the State presented evidence that defendant was present at the hearing where Ms. Herbin originally obtained a DVPO against defendant and evidence that the DVPO had been twice renewed since that time. The State admitted a copy of the most recent renewal order—the order in effect on the date of the charged offense—which contained a section at the bottom entitled “Certificate of Service when Defendant Not Present at Hearing.” That section of the order was blank, allowing the jury to infer that defendant was at the hearing and, therefore, had notice of the renewal of the order. The order in combination with evidence of defendant's statements to Lieutenant Simpson on 8 April 2011 constituted substantial circumstantial evidence from which the jury could infer that defendant knowingly violated the DVPO.
Defendant nonetheless argues that Ms. Herbin's testimony established that defendant was not present at the pertinent DVPO renewal hearing and that the State, therefore, failed to show defendant had notice that the DVPO was renewed. Ms. Herbin testified on direct examination that she thought defendant was present at the first renewal hearing. On cross-examination, she testified that she thought defendant was present for only one of the two renewal hearings and could not remember which of the two renewal hearings defendant attended. Therefore, defendant contends, “the only logical conclusion is that he was not present for the renewal of the protective order that he is alleged to have violated.” Defendant's argument views the evidence in the light most favorable to defendant, contrary to the well-established standard for motions to dismiss. See Rose, 339 N.C. at 192, 451 S.E.2d at 223.
In the light most favorable to the State, the evidence was sufficient to show that defendant knowingly violated the order. Accordingly, the trial court did not err in denying defendant's motions to dismiss the charges of intimidating a witness and violation of a DVPO.
III
Finally, defendant contends that the trial court erred in admitting certain testimony by Lieutenant Simpson because the testimony was inadmissible hearsay. Defendant specifically challenges Lieutenant Simpson's testimony, apparently based on what Ms. Herbin or one of her children told him, about an incident that occurred in “late 2007 or early 2008” in which defendant “was looking in a window,” “actually shaking an air-conditioning unit,” and one of Ms. Herbin's children “was there and present and actually observed that incident as well.” Defendant further challenges the officer's testimony, again apparently based on what other people told him, regarding his 2009 investigation of an incident in which defendant “grabbed the air-conditioning unit in the window, and ... Ms. Herbin and her children saw this,” responding officers “located [defendant's] truck parked on a street in the same neighborhood,” and the truck “found in the neighborhood ... is the same truck in question as in this case.”
Defendant also argues on appeal that admission of the testimony violated his constitutional right of confrontation. Defendant made only general objections to the testimony at trial and defendant does not argue, on appeal, that admission of the testimony was plain error. Accordingly, defendant's confrontation clause argument is not preserved for appeal. See State v. Mobley, 200 N.C.App. 570, 572–73, 684 S.E.2d 508, 510 (2009) (holding defendant's argument that admission of evidence violated his right to confrontation not preserved for appeal where defendant's objection at trial was based solely on hearsay grounds and defendant did not argue plain error on appeal).
Assuming arguendo this testimony was erroneously admitted, defendant must still meet the burden of showing “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.” N.C. Gen.Stat. § 15A–1443(a) (2011). With respect to the charge of intimidating a witness, defendant concedes the State's evidence shows his conduct during the Highway 14 incident was threatening. Moreover, Lieutenant Simpson's testimony regarding his phone conversations with defendant on 8 April 2011 provided substantial evidence from which the jury could determine defendant intimidated Ms. Herbin on Highway 14 for the purpose of preventing her from testifying in court.
Turning to the charge of violating a DVPO, defendant stipulated that a valid DVPO was in existence on 8 April 2011 and admitted his two prior convictions at trial. As previously discussed, Lieutenant Simpson's testimony regarding his phone conversations with defendant on 8 April 2011, along with the blank certificate of service section on the relevant DVPO renewal order, provided substantial evidence from which the jury could infer that defendant knowingly violated the DVPO.
Given the weight of this admissible evidence of defendant's guilt, we conclude there is no reasonable possibility that, had the challenged testimony been excluded, the jury would have reached different verdicts on the charges of intimidating a witness and violation of a DVPO. Defendant has, accordingly, failed to show prejudice.
No error. Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).