State v. Hairston
| Citation | 741 S.E.2d 928 |
| Decision Date | 07 May 2013 |
| Docket Number | No. COA12–985.,COA12–985. |
| Parties | STATE of North Carolina v. Anthony Dwayne HAIRSTON, Defendant. |
| Court | Court of Appeal of North Carolina (US) |
OPINION TEXT STARTS HERE
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.
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.
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...
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State v. Tucker
...not preclude a jury from inferring that the defendant possessed knowledge of the order. For example, in State v. Hairston , 227 N.C. App. 226, 741 S.E.2d 928 (2013) (unpublished), a DVPO had been entered and renewed twice, although the defendant argued that he was not present at the renewal......