State v. Ford

• Decision Date: 01 June 2004
• Docket Number: No. COA03-474.,COA03-474.
• Citation: 164 NC App. 566,596 S.E.2d 846
• Parties: STATE of North Carolina v. Caroline Goldner FORD.
• Court: North Carolina Court of Appeals

596 S.E.2d 846

164 NC App. 566

STATE of North Carolina v. Caroline Goldner FORD.

No. COA03-474.

Court of Appeals of North Carolina.

June 1, 2004.

Attorney General Roy Cooper, by Assistant Attorney General Floyd M. Lewis, for the State.

Atkins & Craven, by Lee Atkins and Susan S. Craven, Saluda, for defendant appellant.

McCULLOUGH, Judge.

On 6 May 2002, defendant was present in Henderson County Criminal District Court for her trial on a driving while impaired charge. The court bailiff was informed by the clerk that defendant had an odor of alcohol about her. The bailiff walked by defendant while she was standing in the courtroom and smelled the odor of alcohol. The bailiff was within two feet of defendant, but did not speak to her. Defendant was unstable on her feet when trying to stand up straight, and was weaving back and forth. The bailiff then notified the Assistant District Attorney, and the Henderson County District Court Judge, the Honorable Randy Pool.

After receiving the information as to defendant's supposed condition, the judge called defendant around to make an inquiry of her. He asked defendant if she had been drinking, which she first denied. The judge informed her that it had come to his attention that she had the odor of alcohol about her, to which she admitted having had a drink during lunch. After this admission, the judge asked that she submit to an alco-sensor test. The judge later testified that he observed defendant's face to be redder the day of the summary contempt hearing in his courtroom, than it did at her de novo hearing before the superior court. He further testified that "I didn't think she was staggering, certainly not; but I thought that she was a little uneasy maybe on her feet, or unsteady maybe slightly on her feet."

Officer John M. Johnson, a K-9 patrol officer with the Henderson County Sheriff's Office, administered an alco-sensor test using the sensor he kept in his car. Defendant registered approximately .08 on the alco-sensor, and Officer Johnson reported this to the judge.

The judge reported the results of the test to defendant, telling her that she was legally impaired. Based upon this, and the odor from her breath, he held her in contempt of court because she had willfully reached the legal level of intoxication before coming to court on her driving while impaired charge. The judge testified that he did not believe he could try defendant in her condition as her competency to stand trial was in question, and she would have been of questionable assistance to her attorney. This caused the judge to stop his proceedings and deal with the situation. He testified his proceeding was delayed 15 minutes by defendant's impairment. The judge further testified that he entered an oral order holding defendant in contempt of court and that defendant was represented by counsel. An order and commitment on the contempt charge was signed that day, 6 May 2002, by the judge. The judge ordered defendant to serve 24 hours in jail and to turn in her driver's license and not operate a motor vehicle until disposition of her charge of driving while impaired.

In between the contempt order of 6 May 2002, and the de novo superior court hearing before Judge Guice, defendant told her probation officer, Donna Cannon, that on 6 May 2002 defendant had two glasses of wine before going to court. Defendant believed it did not matter as she was not driving.

After the de novo superior court hearing on the contempt charge, Judge Guice found that defendant was in direct criminal contempt of the District Court of Henderson County on 6 May 2002. Judge Guice adopted the same punishment as ordered by the district court judge, ordering defendant be discharged from any further obligation to the court.

On appeal, defendant raises six issues alleging reversible error: (I) that the district court and superior court did not sufficiently find that the facts upon which the judgment was based were established beyond a reasonable doubt; (II) & (III) that the trial court improperly admitted the evidence of the alco-sensor test results; (IV) & (V) that the trial court's findings of fact do not sufficiently show that defendant was in contempt; and (VI) that defendant was unlawfully prosecuted for public intoxication without any showing that defendant was disruptive. Because we find that it was reversible error for the trial court not to indicate the standard of proof used in its de novo order, this opinion does not reach the other issues on appeal.

Standard of Proof for Plenary Proceedings for Contempt

Defendant contends that the district court and the superior court failed to find that the facts upon which the judgment rests were established beyond a reasonable doubt. Specifically, defendant argues that the district and superior courts were required to show that this standard of proof was applied in making its respective findings of fact. We hold the superior court, in its de novo review, issued an order that was deficient as a matter of law.

An appeal from a summary finding of contempt in district court is reviewed de novo by a superior court. N.C. Gen.Stat. § 5A-17 (2003). The de novo hearings are plenary proceedings that must be conducted in accordance with N.C. Gen.Stat. § 5A-15 (2003). It has long been held that when reviewing a contempt order de novo, the superior court reviews the facts and law, and additional testimony can be heard. In re Deaton, 105 N.C. 59, 62-63, 11 S.E. 244, 245 (1890). When an appeal proceeds to our Court, the findings of the judge as to the facts are conclusive, and we can only review the law applicable to such state of facts. Id. at 63, 11 S.E. at 245.

N.C. Gen.Stat. § 5A-14(b), relating to summary proceedings for contempt, states:

(b) Before imposing measures under this section, the judicial official must give the person charged with contempt summary notice of the charges and a summary opportunity to respond and must find facts supporting the summary imposition of measures in response to contempt. The facts must be established beyond a reasonable doubt.

Id. (emphasis added). N.C. Gen.Stat. § 5A-15(f), relating to plenary hearings, states:

(f) 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.

Id. (emphasis added). For summary hearings, this Court has therefore required:

[T]he statute (N.C.Gen.Stat[]. § 5A-14(b)) clearly requires that the standard should be "beyond a reasonable doubt" and we find implicit in the statute the requirement that the judicial official's findings should indicate that that standard was applied to his findings of fact.

State v. Verbal, 41 N.C.App. 306, 307, 254 S.E.2d 794, 795 (1979) (emphasis added). We hold the same is required in an order issued from a plenary hearing, as the import and consequences of the two hearings is substantially equivalent.

In Verbal, the defendant, an attorney, was cited by the trial court for direct contempt and sentenced after a summary proceeding to imprisonment for being 18 minutes late in returning to court after a lunch recess while a trial in which defendant was appearing was in progress. We reversed the superior court's finding of contempt during a summary proceeding when the trial court failed to allow the defendant an opportunity to be heard, nor did the court indicate what standard was applied in the court's contempt order. Id. We held these violations of the statute to make the lower court's order of contempt "fatally deficient" and reversed. Id.¹

In the present case, neither the district court's findings in the summary proceeding, nor the superior court's findings in their de novo plenary proceeding, specifically indicate that the "beyond a reasonable doubt" standard of proof required by N.C. Gen.Stat. § 5A-14(b) (for summary proceedings) or N.C. Gen.Stat. § 5A-15(f) (for plenary proceedings) was actually applied. The State argues that the record does indicate, albeit indirectly, that the proper standard was used. Before making his findings of fact and conclusions of law from the de novo hearing, the superior court judge said that he "want[ed] to look at 5A-11 and 5A-14." The district attorney replied, "I have that, Judge. I've got it open to 5A-11." However, in his order, the trial judge cites only to N.C. Gen. Stat. § 5A-11, stating "that under [N.C. Gen. Stat.] § 5A-11, Criminal Contempt, that Criminal Contempt (a)(1), the conduct of the defendant was conduct which did interrupt[.]" The record does not indicate that he looked at N.C. Gen.Stat. § 5A-15(f) for the standard of proof required in plenary proceedings. The only indication that the proper standard of review was applied was that he asked to review the statute before making his findings and that at the beginning of his findings, the boilerplate language of the order states "after consideration of the applicable law." We do not believe this...