State v. Tucker
| Decision Date | 18 August 2020 |
| Docket Number | No. COA19-715,COA19-715 |
| Citation | 848 S.E.2d 265 |
| Parties | STATE of North Carolina v. Mitchell Andrew TUCKER, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Bethany A. Burgon, for the State.
Guy J. Loranger, for defendant-appellant.
Where the evidence, taken in the light most favorable to the State, did not permit the jury to infer that defendant knew of the terms of the protective order, the trial court erred in denying defendant's motion to dismiss. Where the evidence did not permit the jury to find that defendant knew of a protective order, it did not permit the jury to find defendant guilty of breaking and entering in violation of a protective order, and the trial court committed plain error in instructing the jury on that theory of guilt. We reverse.
Mitchell Andrew Tucker (defendant), a 61-year-old homeless man, met Deanna Pasquarella (Pasquarella), also homeless, in August of 2016. They stayed together in a tent for some time, but in October of 2016, defendant assaulted Pasquarella and threatened her with a knife, after which she moved out of his tent. This incident went unreported. By June of 2017, Pasquarella had turned her life around and was living in an apartment and working at a job. Pasquarella still saw defendant occasionally, and he would periodically spend the night.
In August of 2017, however, defendant again assaulted Pasquarella. This time, police were involved, and defendant was arrested. Pasquarella also filed for and received an ex parte domestic violence protective order (the first DVPO) against defendant. This order expired on 6 September 2017. Defendant was served with the first DVPO on 28 August 2017, while defendant was in jail. Defendant was also served with a notice of hearing to be held on 6 September 2017, at which time it would be determined if another DVPO would be entered. Defendant failed to attend the hearing, and on 6 September 2017, a year-long domestic violence protective order (the second DVPO) was entered against defendant. Notice of the second DVPO was placed in the mail on 7 September 2017 and sent to defendant's known address, the Mecklenburg County Jail. Defendant was not residing at the jail when notice was mailed there.
On the morning of 7 September 2017, defendant went to Pasquarella's home. Pasquarella, on seeing defendant through the peephole, fled to a closet and called police. While on the phone, Pasquarella heard defendant break into her apartment. Defendant dragged Pasquarella through the apartment and threatened her with a knife. At this point, police officers entered the apartment and heard defendant exclaim "I'm going to kill you." Officers separated defendant from Pasquarella and restrained defendant.
The Mecklenburg County Grand Jury indicted defendant for violating a civil DVPO while in possession of a deadly weapon, felonious breaking or entering, assault with a deadly weapon, and assault on a female. The Grand Jury subsequently also indicted defendant for attaining the status of an habitual breaking and entering felon. At trial, at the close of the State's evidence and again at the close of all the evidence, defendant moved to dismiss the charges against him. In addition to general motions to dismiss, defendant specifically alleged that the State had failed to prove that defendant had knowledge of the second DVPO. The trial court denied these motions.
The jury returned verdicts finding defendant guilty of violating a protective order while in possession of a deadly weapon, felonious breaking or entering in violation of the second DVPO, assault with a deadly weapon, and assault on a female. Defendant pleaded guilty to the habitual felon charge. The trial court entered findings in aggravation and mitigation, and found that the latter outweighed the former. The court then consolidated the felony charges of breaking and entering, violating a protective order with a deadly weapon, and habitual felon, and sentenced defendant to a minimum of 95 months and a maximum of 126 months in the custody of the North Carolina Department of Adult Correction. The court separately sentenced defendant to 60 days for assault with a deadly weapon, and 30 days for assault on a female, also to be served in the custody of the North Carolina Department of Adult Correction. These sentences were to run consecutively.
Defendant appeals.
In his first argument, defendant contends that the trial court erred in denying his motions to dismiss. We agree.
"This Court reviews the trial court's denial of a motion to dismiss de novo ." State v. Smith , 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). " " State v. Fritsch , 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes , 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) ), cert. denied , 531 U.S. 890, 121 S.Ct. 213, 148 L. Ed. 2d 150 (2000).
"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), cert. denied , 515 U.S. 1135, 115 S.Ct. 2565, 132 L. Ed. 2d 818 (1995).
At trial, defendant moved to dismiss the charges against him, alleging, inter alia , that he had no notice of the second DVPO, and therefore that he could not be found to have willfully violated it. The trial court denied these motions, and on appeal, defendant contends that this was error. Defendant limits his argument to the charge of violating a domestic violence protective order while in possession of a deadly weapon, and accordingly, we will likewise limit our analysis.
Our General Statutes provide that "any person who, while in possession of a deadly weapon on or about his or her person or within close proximity to his or her person, knowingly violates a valid protective order ... shall be guilty of a Class H felony." N.C. Gen. Stat. § 50B-4.1(g) (2019). The indictment on this charge specifically states, in relevant part, that defendant "did unlawfully, willfully, and feloniously violate a valid protective order ... issued on September 6, 2017[.]" However, defendant contends that there was no evidence that he knew of the second DVPO, and therefore no evidence that his violation thereof was knowing.
Our Supreme Court has held that knowledge may be proved "by circumstantial evidence from which an inference of knowledge might reasonably be drawn." State v. Boone , 310 N.C. 284, 295, 311 S.E.2d 552, 559 (1984), superseded on other grounds , State v. Oates , 366 N.C. 264, 267, 732 S.E.2d 571, 574 (2012). In support of its case, the State noted that, although defendant was not present for the hearing that resulted in the second DVPO and did not receive notice of the entry of the second DVPO, defendant did receive a summons and notice of the 6 September 2017 hearing. The summons provided that "[i]f you fail to answer the complaint, the plaintiff will apply to the Court for relief demanded in the complaint." The State also presented the testimony of officer James McCarty (Officer McCarty), who responded to Pasquarella's call. The State played a recording for the jury, taken from Officer McCarty's body camera. On the recording, as Officer McCarty pulled defendant and Pasquarella apart, Pasquarella commented, "That's why I got a court order," and defendant replied, "I know, I know." This evidence is somewhat tenuous, but the State nonetheless contends that, taken together, this evidence shows that (1) a hearing would be held on 6 September 2017 to determine whether Pasquarella was entitled to a protective order, (2) if defendant failed to attend that hearing, a protective order would indeed be entered, and (3) by his comment "I know, I know," defendant was aware of the entry of the second DVPO.
Defendant argued at trial, and argues on appeal, that his statement, "I know, I know," could refer to the first DVPO, which expired on 6 September 2017, the day before he broke into Pasquarella's apartment. He further argues that although the summons provided that "plaintiff will apply to the Court for relief demanded in the complaint," there was no guarantee that the second DVPO would in fact be granted, or what its terms would entail. As such, defendant contends that any purported evidence of his knowledge of the second DVPO was insufficient.
Considering the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference, the evidence shows that defendant was aware of the first DVPO. The record demonstrates that a sheriff's deputy read the ex parte order to defendant while defendant was in jail, and "left the service copy with the defendant." This evidence supports a finding that defendant was aware of the terms of the first DVPO, including the requirement to stay away from Pasquarella. However, the State presented no evidence that defendant received notice or was otherwise aware of the second DVPO.
The State argued at trial that the second DVPO was a continuation of the first, and does so likewise on appeal. Indeed, this Court has held that, where a DVPO was continuously in effect for a period of time and a defendant made statements suggesting his awareness thereof, the fact that the defendant may have failed to attend a hearing to renew it does 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) (unpublishe...
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State v. Tucker
..."presented no evidence that defendant received notice or was otherwise aware of the [6 September 2017] DVPO." State v. Tucker , 273 N.C. App. 174, 178, 848 S.E.2d 265 (2020). The Court of Appeals viewed defendant's statement—"I know" in response to the victim's statement, "I got a restraini......