St. John v Brantley

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NO. COA11-635; NO. COA11-6431 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 JUDY ST. JOHN, Plaintiff, v. Pitt County No. 10 CVD 3501 TAMMY BRANTLEY, Defendant; JUDY ST. JOHN, Plaintiff, v. Pitt County No. 10 CVD 3502 VICKY BRANTLEY, Defendant. Appeal by Defendants from orders entered 24 February 2011 by Judge Charles M. Vincent in Pitt County District Court. Heard in the Court of Appeals 28 November 2011. The Foster Plaintiff. Sutton Law Defendants. Law Firm, Offices, P.A., by Jeffery P.A., by David B. C. Foster, for Sutton, for STEPHENS, Judge. 1 Pursuant to Rule 40 of the North Carolina Rules of Appellate Procedure and based on the identity of the legal issues raised, COA11-635 and COA11-643 are consolidated for decision on appeal. -2On 10 December 2010, Plaintiff Judy St. John filed complaints for civil no-contact orders against Defendants Tammy Brantley and Vicky Brantley, who are sisters. On the same date, the civil trial orders court issued restraining Plaintiff. ex parte Defendants Following a temporary from hearing on contacting 16 no-contact or February harassing 2011, on 24 February 2011, nunc pro tunc 16 February 2011, the court entered one-year civil no-contact orders against both Defendants. At the request of Plaintiff, Defendants, and the State, the court heard the civil no-contact matters and a related misdemeanor criminal case against Tammy at the same time. evidence tended to show the following: the street mother. from the home where The Plaintiff lives across Defendants live with their Defendants had a volatile relationship with each other as reported by Plaintiff and other neighbors. On 23 September 2010, Plaintiff heard Tammy screaming at Vicky and threatening to kick her out of the house. Later that morning, Tammy came outside and began shouting about [s]ocial [s]ervices and said that bitch across the street had called [social services,] referring to Plaintiff. Plaintiff had not called the Pitt County Department of Social Services ( DSS ) on that occasion, but did call on 24 September to report her concerns that Tammy -3was mistreating Vicky and might have been locking her out of their house overnight. On 2 October 2010, Plaintiff looked out her front window and saw Tammy push her sister off their front porch. Tammy then began singing Christian songs loudly as she beat her sister with an object Plaintiff could not identify. Plaintiff called the Greenville Police Department ( GPD ), but could not wait for their arrival due to a doctor s appointment. As Plaintiff left for her appointment, she saw a neighbor who was planning to go to Defendants home and tell them to be quiet. him she had called police. Defendants were Plaintiff told As Plaintiff and her neighbor spoke, screaming at [them]. On her way to the appointment, Plaintiff saw several other neighbors who had heard the commotion, and Plaintiff also told them that she had already called police. Plaintiff called a GPD detective about the incident a few days later. After speaking with Plaintiff, the detective obtained a warrant and arrested Tammy on 8 October 2010 for misdemeanor assault. Plaintiff s name did not appear on the warrant. denied Defendants criminal charge was dismissed. any assault took place and the The charge was reinstated on 8 November 2010, leading again to Tammy s arrest. Plaintiff was -4listed as the complainant on the second warrant, which was issued 10 December 2010. Plaintiff Defendants testified began that harassing after her. her On call 3 to October, police, Plaintiff received a message on her Facebook account with the subject line, Did you know you are committing a sin? On 11 October, Vicky came to Plaintiff s home and threatened to sue Plaintiff for libel. Defendants assault. Vicky also reported that a police officer had told that Plaintiff had a recording of the 2 October Plaintiff responded that she did not have a recording, but had given police a statement about the assault. On 12 October, Vicky returned to Plaintiff s home to tell her she knew Plaintiff was going to testify against Tammy. both Defendants came to Plaintiff s house. Later that day, They told Plaintiff they had seen young men on her carport, knew who the men were but would not identify them to Plaintiff, and stated they did not want Plaintiff to think Defendants were anything in Plaintiff s carport was damaged. that Defendants were planning to vandalize responsible if Plaintiff believed her property and wanted to plant a false cover story about the alleged young men. Plaintiff planned to have motion-sensor lights installed outside -5her home and moved her grill from her porch because she feared Defendants might use it to set her house on fire. On 10 December, Vicky rang Plaintiff s doorbell. When Plaintiff would not answer, Tammy pounded on the door and yelled loudly at Plaintiff. Later that day, Tammy returned, screaming I know you re in there, and pounding on Plaintiff s door until pictures on the wall shook. Plaintiff testified, I believe if I had opened the door she would have pushed through and beat me. On 11 December, Tammy knocked on Plaintiff s door again and when Plaintiff refused to answer, Tammy stood on Defendants porch and following screamed day, loudly Tammy about followed Plaintiff was running errands. committing Plaintiff in suicide. her car The when Plaintiff testified she did not feel safe and stated, I think if I go outside, except to get in my car, Tammy will try to harm me. In findings each of of fact the orders, about the the trial behaviors court made Defendants detailed engaged in against Plaintiff, as well as the criminal charges Tammy faced and Plaintiff s role as a witness in that matter. The court specifically found that Defendants behavior constitute[d] the unlawful conduct of intimidating a witness in a pending criminal case[.] Based on these findings, the court concluded that -6Defendants committed [P]laintiff. erred in acts of unlawful conduct against Defendants appeal, arguing that the trial court entering the no-contact orders. We disagree and affirm. Discussion A trial judge, sitting without a jury, acts as fact finder and weigher of evidence. Accordingly, if [the court s] findings are supported by competent evidence, they are binding on appeal, although there may be evidence that may support findings to the contrary. S. Bldg. Maint. v. Osborne, 127 N.C. App. 327, 331, 489 S.E.2d 892, 895 (1997) (citation omitted). Here, Defendant does not challenge the content of any findings of fact, and thus, they are binding on appeal. Upon conduct a finding committed by that the the victim has respondent, the suffered court unlawful may issue temporary or permanent civil no-contact orders as authorized in this Chapter. N.C. Gen. Stat. § 50C-5(a) (2009). Two types of unlawful conduct can support the entry of a civil no-contact nonconsensual sexual conduct2 or order under section 50C-5(a): stalking. N.C. Gen. Stat. § 50C-1(7) (2009). The statute further defines stalking as 2 Here, there are no allegations of sexual conduct by Defendants. -7[o]n more than one occasion, following or otherwise harassing, as defined in G.S. 14277.3A(b)(2) [the criminal stalking statute], another person without legal purpose with the intent to do any of the following: a. Place the person in reasonable fear either for the person s safety or the safety of the person s immediate family or close personal associates. b. Cause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and that in fact causes that person substantial emotional distress. N.C. Gen. Stat. § 50C-1(6). This Court has emphasized that entry of a civil no-contact order requires not only findings of fact that show the defendant harassed the plaintiff, but also that the defendant s harassment was accompanied by the specific intent described in section 50C-1(6)(a) or (b). Ramsey v. Harman, 191 N.C. App. 146, 149, 661 S.E.2d 924, 926 (2008). for behavior refers to statute: the that constitutes definition harassment, contained in our As section 50C-1(6) criminal stalking Knowing conduct . . . directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose. N.C. 277.3A(b)(2) (2009). Relevancy of Findings Gen. Stat. § 14- -8Defendants first argue that most of the court s findings are irrelevant because they pertain to Defendants actions prior to 10 December 2010 when the second warrant for Tammy s arrest was issued. We disagree. Because Plaintiff s name did not appear on the first warrant, issued on 8 October 2010, Defendants contend they could not have known Plaintiff would be a witness against Tammy and thus cannot have been harassing her for purposes of witness intimidation. However, at the hearing, Plaintiff testified that she told Vicky on 11 October that she had called the police and made a written report about the assault. In addition, as the court found in finding of fact 7, the following day, Vicky told Plaintiff that Defendants knew Plaintiff was going to testify against them. Thus, Defendants actions prior to 10 December were taken with knowledge of Plaintiff s role in the charges against Tammy and were highly relevant. This meritless argument is overruled. Requirement of Criminal Conduct by Defendants Defendants testify that next argue Defendants that committed because Plaintiff criminal conduct did not against her, Defendants cannot have engaged in unlawful conduct as required for issuance of a civil no-contact order. As noted -9supra, unlawful conduct under section 50C-1(a) does require commission of a crime against a plaintiff. unlawful conduct includes harassment which the not Instead, defendant intends to cause the plaintiff reasonable fear for her safety or substantial emotional distress[.] 1(6). the N.C. Gen. Stat. § 50C- Further, we note that in unchallenged finding of fact 16, court found that Defendants behavior constitute[d] the unlawful conduct of intimidating a witness in a pending criminal case, which is a Class H felony in this State. § 14-226(a) (2009). N.C. Gen. Stat. Thus, although not required for issuance of a civil no-contact order, the trial court here did find that Defendants engaged in criminal behavior toward Plaintiff.3 This meritless argument is overruled. Statutory Basis for Civil No-contact Orders Defendants also argue that intimidating a witness in a pending criminal case does not fall into either of the two categories of behavior defined as unlawful conduct sufficient to support entry of a civil no-contact order. As discussed above, under Chapter We disagree. 50C, unlawful conduct includes stalking, see N.C. Gen. Stat. § 50C-1(7), which in turn 3 At the conclusion of the hearing, the trial judge remarked, It s a wonder that they weren t charged with a felony of harassing or intimidating a witness. [T130] -10includes harassment as defined in our criminal stalking statute. See N.C. Gen. Stat. § 50C-1(6). The criminal stalking statute defines harassment as [k]nowing conduct . . . directed at a specific person that torments, terrorizes, or person and that serves no legitimate purpose. terrifies that N.C. Gen. Stat. § 14-277.3A(b)(2). We hold that, although Chapter 50C does not specifically the definitions use of term unlawful witness conduct intimidation, contained therein are the more than broad enough to encompass such behavior. Here, Plaintiff Defendants and Defendants purpose, the knowing terrorized conduct trial undertook their criminal purpose, her. toward court course to conduct In was addition, directed not only at was Plaintiff without any legitimate specifically found that Defendants of wit, conduct to for an discourage testifying in Tammy s pending criminal case. illegitimate and Plaintiff from Thus, Defendants actions to intimidate Plaintiff were harassment under section 14-277.3A(b)(2), which in turn constituted stalking and thus unlawful conduct under Chapter 50C. The plain language of Chapter 50C does not require any particular purpose behind a defendant s stalking or harassment, beyond an intent to frighten a plaintiff or cause her severe emotional distress. Nor does -11Chapter 50C require that the trial court use the term harassment or stalking in its findings of fact to support a civil no-contact order. the victim has [defendant.] here. Rather, the court need only find that suffered unlawful conduct N.C. Gen. Stat. § 50C-5(a). committed by the The court so found Accordingly, this meritless argument is overruled. Specific Intent In a related argument, Defendants assert that the court s findings that criminal case orders because they were intimidate[d] insufficient witness a to intimidation witness support does in the not a pending no-contact reflect the specific intent required of Defendants under section 50C-1(6). We disagree. In making this contention, Defendants rely on Ramsey, supra, in which this Court reversed a civil no-contact order where the trial court found that the defendant had harassed the plaintiff, but made no findings about the defendant s intent. 191 N.C. App. at 148-49, 661 S.E.2d at 925-26. We held that a mere finding of harassment is insufficient because [t]he statute requires the trial court to further find [the] defendant s harassment was accompanied by the specific intent to either: (1) place the person in fear for their safety, or the safety of their family or close personal associates or (2) cause -12the person substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and in fact cause that person substantial emotional distress. Id. at 149, 661 S.E.2d at 926 (citing N.C. Gen. Stat. § 50C1(6)). Here, in contrast to Ramsey, the court found that Defendants intimidated Plaintiff because she was to be a witness in the criminal case against Tammy. Intimidate means to make timid or fearful[,] inspire or affect with fear[,] and to compel action or inaction (as by threats)[.] Webster s Third New International Dictionary (unabridged 2002). Intimidating a witness in a criminal trial, as the court found occurred here, encompasses all three of these definitions and fully reflects the specific intent required under section 50C-1 (6). This meritless argument is overruled. Lack of Required Findings Defendants entering the next argue no-contact that orders statutorily-required findings. Defendants erroneously contend entered that because the trial because court the erred orders in lacked We disagree. the there no-contact were no orders were findings that Plaintiff suffered substantial emotional distress and that the -13evidence would not support any such findings. However, under the statute, entry of a civil no-contact order is proper, not only based substantial on findings emotional that the distress, but plaintiff also has suffered a defendant when harasses a person with the intent to [p]lace the person in reasonable fear . . . for the person s safety[.] N.C. Gen. Stat. § 50C-1(6)(a). Here, Plaintiff Defendants, testified including, inter in detail alia, about that her fear Plaintiff: of (1) believe[d] if I had opened the door [Tammy] would have pushed through and beat me[,] (2) did not feel safe[,] and (3) worried that if I go outside, except to get in my car, Tammy will try to harm me. In finding of fact 9, the court found that Plaintiff had installed motion-sensor lighting outside her home and moved her grill out of fear that planning to vandalize or burn down her house. Defendants were In finding of fact 11, the court found that when Defendants had pounded on Plaintiff s door and yelled at her, Plaintiff was afraid[.] In finding of fact 16, the court found that Defendants actions were undertaken in order to intimidate Plaintiff because she planned to testify in Tammy s criminal trial. These findings comport with the statute s requirements and support entry of the -14no-contact orders. This meritless argument is overruled. Reliance on Inadmissible Evidence Defendants last argue that the court s findings about the circumstances surrounding Tammy s alleged assault on her sister were based on evidence barred by Rule 404(b). In order to preserve an issue We disagree. for appellate review, a party must have presented to the trial court a timely request, objection, or ruling party the motion, stating desired the the court specific to grounds for if specific make grounds were not apparent from the context. 10(a)(1). Because Defendants did not the the N.C. R. App. P. object to Plaintiff s testimony about Tammy s assault on Vicky, they have waived their right to appellate review of this issue. Further, even if Defendants had preserved this issue, they would not prevail. Under Rule 404(b), [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2009). Evidence about Tammy s assault on Vicky and Plaintiff s role in the subsequent criminal charges explained Defendants motive in harassing -15Plaintiff, and thus was not barred by Rule 404(b). argument lacks merit and is overruled. Defendants The trial court s civil no-contact orders are AFFIRMED. Chief Judge MARTIN and Judge ELMORE concur.

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