State v. Wendorf
| Decision Date | 01 December 2020 |
| Docket Number | No. COA20-227,COA20-227 |
| Citation | 852 S.E.2d 898 |
| Parties | STATE of North Carolina v. Amanda WENDORF, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Ameshia A. Cooper, for the State.
Paglen Law PLLC, by Louise M. Paglen, for the Defendant.
Amanda Wendorf ("Defendant") appeals from the trial court's order finding her in criminal contempt. We affirm the order of the trial court.
Defendant and Jamie Davis were involved in a romantic relationship in 2018 that featured episodes of domestic violence. After one of these episodes, Mr. Davis was charged with assault on a female on 23 June 2018. On 17 August 2018, Defendant was personally served with a subpoena compelling her to appear and testify at Mr. Davis's trial on 19 September 2018.
On 19 September 2018, the State's case against Mr. Davis came on for trial in Surry County District Court before the Honorable Marion Boone. The assistant district attorney made a statement at the beginning of the calendar call of cases set for hearing that day, asking that the individuals whose cases were set for hearing identify themselves when their names were called out and that victims and witnesses in the cases also identify themselves. When the assistant district attorney called Mr. Davis's name, Mr. Davis identified himself, but Defendant did not.
Later in the session of court, the assistant district attorney called Mr. Davis's case for trial and Mr. Davis approached the defense table. Noting the absence of Defendant, the State's only witness in the case against Mr. Davis, the assistant district attorney moved for a continuance, but Judge Boone denied the motion. The assistant district attorney therefore took a voluntary dismissal, and the case against Mr. Davis was dismissed. The assistant district attorney then moved that the court order Defendant to show cause why she should not be held in contempt for her failure to appear that day, which Judge Boone granted.
Defendant was personally served with the show cause order and the matter came on for hearing on 2 November 2018. Judge Boone found Defendant in criminal contempt that day and fined her $250 for her failure to appear on 19 September 2018. On 9 November 2018, Defendant appealed from Judge Boone's order to superior court.
The matter came on for hearing in Surry County Superior Court on 28 October 2019 before the Honorable Angela B. Puckett. Judge Puckett found Defendant in criminal contempt and fined her $250 in an order entered on 8 November 2019.
Defendant timely appealed from the superior court's order to our Court.
In general, "our standard of review for contempt cases is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment." State v. Phair , 193 N.C. App. 591, 593, 668 S.E.2d 110, 111 (2008) (internal marks and citation omitted). State v. Salter , 264 N.C. App. 724, 732, 826 S.E.2d 803, 809 (2019) (citation omitted). Of course, "[t]he issue of subject matter jurisdiction may be raised at any time, even for the first time on appeal." State v. Barnett , 223 N.C. App. 65, 68, 733 S.E.2d 95, 98 (2012). Because subject matter jurisdiction is an issue of law, review is de novo. Id.
Defendant makes essentially five arguments on appeal, which we address in turn.
Defendant first argues that the failure to appear and testify when subpoenaed cannot be the basis for a finding of criminal contempt because it does not constitute "[w]illful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution." N.C. Gen. Stat. § 5A-11(a)(3) (2019). We disagree.
Contempts of court are classified in two main divisions, namely: direct and indirect, the test being whether the contempt is perpetrated within or beyond the presence of the court. A direct contempt consists of words spoken or acts committed in the actual or constructive presence of the court while it is in session or during recess which tend to subvert or prevent justice. An indirect contempt is one committed outside the presence of the court, usually at a distance from it, which tends to degrade the court or interrupt, prevent, or impede the administration of justice.
Galyon v. Stutts , 241 N.C. 120, 123, 84 S.E.2d 822, 824-25 (1954) (internal citations omitted). By statute, "[a]ny criminal contempt other than direct criminal contempt is indirect criminal contempt[.]" N.C. Gen. Stat. § 5A-13(b) (2019). Proceedings for criminal contempt are "brought to preserve the power and to vindicate the dignity of the court and to punish for disobedience of its processes or orders." Galyon , 241 N.C. at 123, 84 S.E.2d at 825. They "are punitive in their nature, and the government, the courts, and the people are interested in their prosecution." Id.
Under Rule 45 of the North Carolina Rules of Civil Procedure, applicable to subpoenas in North Carolina in criminal cases, see N.C. Gen. Stat. § 15A-801 (2019), "[f]ailure by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt of court[,]" Id. § 1A-1, Rule 45(e)(1).1 Definitionally, a subpoena is "[a] writ or order commanding a person to appear before a court ..., subject to a penalty for failing to comply." Subpoena, Black's Law Dictionary 1563 (9th ed. 2009). Accordingly, our Supreme Court has held that willfully refusing to testify when subpoenaed can constitute criminal contempt of court, In re Williams , 269 N.C. 68, 75, 152 S.E.2d 317, 323 (1967), as can offering obviously false or evasive testimony, since it is equivalent to the willful refusal to testify, Galyon , 241 N.C. at 124, 84 S.E.2d at 825. Similarly, we have held that attempting to persuade a witness to disobey a subpoena and fail to appear constitutes criminal contempt under N.C. Gen. Stat. § 5A-11(a)(3) even where the witness, though frightened, still appears and testifies. State v. Wall , 49 N.C. App. 678, 679-80, 272 S.E.2d 152, 153 (1980).
Just as testifying evasively or obviously falsely is equivalent to refusing to testify in willful disobedience to the command of a subpoena, so too is willfully failing to appear when a subpoena compels a witness's appearance to testify. A valid subpoena is the lawful process of a court. See Process , Black's Law Dictionary 1325 (9th ed. 2009) (defining "process" as "[a] summons or writ, esp. to appear and respond in court"). The failure to appear when ordered is punishable as criminal contempt. O'Briant v. O'Briant , 313 N.C. 432, 434-35, 329 S.E.2d 370, 372-73 (1985). We therefore hold that failing to appear when subpoenaed can be punished as criminal contempt because it constitutes "[w]illful disobedience of, resistance to, or interference with a court's lawful process[.]" N.C. Gen. Stat. § 5A-11(a)(3) (2019).
Defendant complains of a number of defects in the district court's proceeding and order finding her in criminal contempt, many of which we lack jurisdiction to consider. However, her argument that the district court lacked jurisdiction over the proceeding because the show cause order initiating the proceeding was facially defective is a collateral attack on the jurisdiction of the superior court. Because this assertion, if true, would entail that the superior court lacked jurisdiction to find her in criminal contempt, we have jurisdiction to address it. We reject the argument, though, and hold that the show cause order in district court was not facially defective.
Section 5A-17(a) of the General Statutes of North Carolina provides that "[a] person found in criminal contempt may appeal in the manner provided for appeals in criminal actions, except appeal from a finding of contempt by a judicial official inferior to a superior court judge is by hearing de novo before a superior court judge." N.C. Gen. Stat. § 5A-17(a) (2019). An appeal under N.C. Gen. Stat. § 5A-17(a) to superior court is not an appeal on the record, however, unlike an appeal to our Court or the Supreme Court. See State v. Ford , 164 N.C. App. 566, 569, 596 S.E.2d 846, 849 (2004). While a defendant in a criminal contempt proceeding is not entitled to a jury trial because criminal contempt does not qualify as a serious offense within the meaning of the Sixth Amendment, Blue Jeans Corp. v. Amalgamated Clothing Workers of Am. , 275 N.C. 503, 511, 169 S.E.2d 867, 872 (1969), an appeal de novo in superior court of a finding of criminal contempt in district court is otherwise "a new trial ... from the beginning to the end[,]" State v. Brooks , 287 N.C. 392, 405, 215 S.E.2d 111, 120 (1975). "[I]t is as if the case had been brought there originally and there had been no previous trial." State v. Sparrow , 276 N.C. 499, 507, 173 S.E.2d 897, 902 (1970).
Generally speaking, we lack jurisdiction to review a district court's contempt proceeding, Jones v. Jones , 121 N.C. App. 529, 530, 466 S.E.2d 344, 345 (1996), because N.C. Gen. Stat. § 5A-17(a) "vests exclusive jurisdiction in the superior court to hear appeals from orders in the district court holding a person in criminal contempt[,]" Michael v. Michael , 77 N.C. App. 841, 843, 336 S.E.2d 414, 415 (1985). Still, "[t]he jurisdiction of the superior court on appeal from a conviction in district court is derivative." State v. Wesson , 16 N.C. App. 683, 689, 193 S.E.2d 425, 429 (1972). If "a court has no authority to act, its acts are void, and may be treated as nullities anywhere, at any time, and for any purpose." Corey v. Hardison , 236 N.C. 147, 153, 72 S.E.2d 416, 420 (1952). And "[w]here a court enters an order without...
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...court's findings of fact and whether the findings support the conclusions of law and ensuing judgment.’ " State v. Wendorf , 274 N.C. App. 480, 483, 852 S.E.2d 898, 902 (2020) (quoting State v. Phair , 193 N.C. App. 591, 593, 668 S.E.2d 110, 111 (2008) ). "Findings of fact are binding on ap......