State v. Woodruff
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-812 NORTH CAROLINA COURT OF APPEALS Filed: 21 January 2014 STATE OF NORTH CAROLINA v. Rowan County No. 12 CRS 054233 RONALD LAFLEW WOODRUFF Appeal by Defendant from judgment entered 12 March 2013 by Judge W. Erwin Spainhour in Superior Court, Rowan County. Heard in the Court of Appeals 10 December 2013. Attorney General Roy Cooper, by Assistant Attorney General Phyllis Tranchese, for the State. Peter Wood for Defendant. McGEE, Judge. Ronald Laflew Woodruff ( Defendant ) was charged with violating a domestic violence protective order on 8 July 2012. A jury found Defendant guilty of violating a domestic violence protective order on 12 March 2013. Defendant argues motion to dismiss. the trial Defendant appeals. court erred in denying his Defendant contends his motion to dismiss -2 should have been granted on two grounds. The first ground is based on double jeopardy, and the second involves willfulness. I. Double Jeopardy A. Preservation of the Issue for Review Preliminarily, we must address the issue of preservation. The procedure required in criminal trials to assert a double jeopardy defense is well established[.] State v. McKenzie, 292 N.C. 170, 175, 232 S.E.2d 424, 428 (1977). If the defendant is to take advantage of [the double jeopardy defense] on appeal, he must first properly raise it before the trial court. do so precludes reliance on the defense on appeal. Failure to McKenzie, 292 N.C. at 175, 232 S.E.2d at 428; see also State v. Roope, 130 N.C. App. 356, 362-63, 503 S.E.2d 118, 123 (1998). The rule that constitutional questions must be raised first in the trial court is based upon the reasoning that the trial court should, in the first instance, pass[] on the issue. State v. Kirkwood, ___ N.C. App. ___, ___, 747 S.E.2d 730, 737 (2013) (internal quotation marks omitted). [D]ouble jeopardy protection may not be raised on appeal unless the defense and the facts underlying it are brought first to the attention of the trial court. McKenzie, 292 N.C. App. at 176, 232 S.E.2d at 428. Defendant moved to dismiss at the close of the State s -3evidence, but offered no argument in support of his motion. Defendant renewed his motion to dismiss at the close of all evidence. Defendant again offered no argument in support of his motion. Our review of the transcript reveals no explicit double jeopardy mention of double jeopardy. The came only after dismiss. possible the trial implicit court reference denied to Defendant s motions to During discussions on jury instructions, the following exchange occurred: [Defense Attorney]: I would also point out to the Court that when this case was tried in district court, the judge found him not guilty of assault on a female. THE COURT: Well, I know, but that s not binding on this Court and she has testified that he assaulted her on that occasion, so [Defense Attorney]: Right. THE COURT: -- that s the evidence I have to take in the light most favorable to the state at this point. Since the transcript suggests the trial court possibly addressed and ruled upon a double jeopardy issue, albeit after the denial of Defendant s motions to dismiss, we assume arguendo that the issue of double jeopardy is preserved for our review. B. Analysis of the Merits Defendant contends that, once the district court found -4Defendant not guilty of the underlying assault on a female, even if assault separately as an charged, element of no court another could reconsider crime. Defendant the cites McKenzie, supra, for support. In McKenzie, the issue was whether on a prosecution in superior court for involuntary manslaughter arising from an automobile accident, the [S]tate may rely on [the] defendant s driving while under the influence of intoxicants . . . when [the] defendant had been earlier acquitted of this offense in the district court. McKenzie, 292 N.C. at 171-72, 232 S.E.2d at 426. The Double Jeopardy Clause entitles defendants in state criminal proceedings to the benefit of the collateral estoppel doctrine. Id. at 174, 232 S.E.2d at 427 (citing Swenson, 397 U.S. 436, 25 L. Ed. 2d 469 (1970)). Ashe v. Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. McKenzie, 292 N.C. at 174, 232 S.E.2d at 427-28. [T]he precludes prosecution acquittal the any state issue of a from defendant even relitigating necessarily defendant in the former acquittal. decided in district in a in favor court subsequent of the Id. at 175, 232 S.E.2d at -5428. Determining whether the issue in question was necessarily decided in favor of the defendant may require an examination of the entire record of the earlier proceeding. In the present case, the Id. magistrate s order alleges Defendant violated a valid protective order on three grounds: (1) by assaulting the plaintiff[,] (2) by harassing the plaintiff by taking video of her on her property[,] and (3) by going to/around the plaintiff residence. Even assuming that assaulting the plaintiff is tantamount to the criminal offense of assault on a female, Defendant fails to show that assaulting the plaintiff formed the basis of his conviction for violating a domestic violence protective order. The district court judgment indicates no particular ground. Furthermore, that Defendant the was district found violence protective order. court guilty of judgment violation indicates of a only domestic The record does not show Defendant was found not guilty of assault on a female in district court. We cannot determine whether the district court made a decision on the issue of assaulting the plaintiff or assault on a female at all. Defendant has the burden of demonstrating that the issue he seeks to foreclose from relitigation was actually decided in the previous proceeding. State v. Carter, 357 N.C. 345, 355- -656, 584 S.E.2d 792, 800 (2003) (citing McKenzie, 292 N.C. at 175, 232 S.E.2d at 428). shown that the issue As discussed above, Defendant has not he seeks to foreclose ( assault on a female ) was actually decided in district court, or that the issue was decided again in superior court. Defendant has thus failed to show error on this basis. II. Willfulness Again, we must first address the issue of preservation. Defendant argues the trial court erred in denying his motion to dismiss because willfulness. argument for there was no evidence of Defendant s However, Defendant did not strive to preserve this review. In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. N.C.R. App. P. 10 (a)(1). In State v. Curry, 203 N.C. App. 375, 385, 692 S.E.2d 129, 137-38 (2010), the defendant argued at trial that the possession of a firearm by a felon charge should be dismissed because the State showed only that the defendant was charged with assault with a deadly weapon inflicting serious injury. However, on appeal, the defendant sought to argue that there was a variance -7between his indictment and the evidence presented at trial. at 385, 692 S.E.2d at 138. waived the issue. Id. This Court held that the defendant Id. at 385-86, 692 S.E.2d at 138 (citing State v. Tellez, 200 N.C. App. 517, 521, 684 S.E.2d 733, 736 (2009)). In the present case, the transcript shows Defendant made no argument at all in support of his motions to dismiss. We addressed Defendant s double jeopardy argument in Section I.B., because the transcript suggested that the trial court addressed a possible double jeopardy issue, albeit after the denial of Defendant s motions to dismiss. Because we assumed the double jeopardy argument was preserved in spite of the total lack of argument supporting Defendant s motions to dismiss, we decline to assume that this issue is preserved as well. It is well- established that the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts. Tellez, 200 N.C. App. at 521, 684 S.E.2d at 736. In accordance with N.C.R. App. P. 10(a)(1), Curry, and Tellez, we decline to address the issue of willfulness. No error. Judges HUNTER, Robert C. and ELMORE concur. Report per Rule 30(e).
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