State v. Nwanguma ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-274
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
STATE OF NORTH CAROLINA
v. Durham County
No. 11 CRS 60616
BIBIAN NWANGUMA
Defendant
Appeal by defendant from order entered 28 August 2012 by
Judge Abraham P. Jones in Durham County Superior Court. Heard in
the Court of Appeals 12 September 2013.
Roy Cooper, Attorney General, by Daniel P. O’Brien,
Assistant Attorney General, for the State.
Wait Law, P.L.L.C., by John L. Wait, for defendant-
appellant.
DAVIS, Judge.
Bibian Nwanguma (“Defendant”) appeals from the trial
court’s 28 August 2012 order finding her in contempt. On
appeal, her primary argument is that the trial court erred by
failing to comply with statutorily required procedural
safeguards in connection with the contempt charge. After
careful review, we reverse the trial court’s order.
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Factual Background
On 23 November 2011, Defendant was charged with misdemeanor
second degree trespass and was found guilty in Durham County
District Court on 14 March 2012. On 15 March 2012, Defendant
appealed the conviction to Durham County Superior Court.
On 27 August 2012, Defendant’s case was scheduled for
trial. Defendant appeared for the morning session of court with
her counsel. At the conclusion of the morning session, the
trial court directed her to return to court at 2:30 p.m. Her
trial counsel also reiterated to her that she needed to be
present in the courtroom at 2:30 p.m.
Defendant proceeded to go to her attorney’s office to
deliver some photographs but was unable to open the door to the
office. She then went to the Department of Social Services and
eventually returned to her attorney’s office because she was
unclear about “when she ha[d] to go to court.” Her attorney
then attempted to escort her to the courthouse by following
Defendant in her car. However, she lost sight of Defendant’s
car.
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When Defendant finally returned to the courthouse, it was
after 2:30 p.m. She discovered that court was already in
session and the courtroom door was closed. She went to the
clerk’s office to seek guidance and was advised by staff to
return the next day. Defendant was absent from the courtroom
when her case was called that afternoon, and an order was
entered for her arrest based on her failure to appear.
On the following day, Defendant’s case was called once
again, and this time Defendant was present in the courtroom.
When asked by the trial court about her absence the previous
day, Defendant’s counsel explained the reason for her failure to
be present. Defendant’s counsel also informed the court that
Defendant was currently taking several medications for a
disability and expressed doubt as to her ability to fully
understand the proceedings against her. Her attorney moved for
a forensic evaluation and requested that the order for arrest
for failure to appear be stricken.
The trial court denied the request and entered an order
holding Defendant in contempt of court for having failed to
appear the previous afternoon. On 28 August 2012, the court
entered an order requiring Defendant to serve thirty days in
custody and to receive a mental competency evaluation.
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Defendant was determined to be competent, and on 27
September 2012, Defendant was released from custody. On 11
December 2012, Defendant filed a notice of appeal from the order
of contempt. On 19 April 2013, Defendant filed a petition for
writ of certiorari.
Analysis
I. Appellate Jurisdiction
As an initial matter, we must determine whether we have
jurisdiction to consider Defendant’s appeal based on her failure
to give notice of appeal within fourteen days from the entry of
the contempt order as required by Rule 4(a)(2) of the North
Carolina Rules of Appellate Procedure. Defendant acknowledges
that her notice of appeal was untimely but asks that the merits
of her appeal be considered pursuant to her petition for
certiorari.
When a defendant has not properly given notice of appeal,
this Court is without jurisdiction to hear the appeal. State v.
McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320, appeal
dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005). While this Court
is unable to hear Defendant’s direct appeal, it does have the
discretion to consider the matter by granting her petition for
writ of certiorari. Rule 21(a)(1) provides this Court with the
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authority to review the merits of an appeal via the issuance of
a writ of certiorari even when the appeal is filed in an
untimely manner. Anderson v. Hollifield, 345 N.C. 480, 482, 480
S.E.2d 661, 663 (1997).
Defendant’s petition for writ of certiorari demonstrates
that Defendant lost her right to appeal through her trial
counsel’s incorrect calculation of the deadline for her notice
of appeal. For this reason, we elect to grant Defendant’s
petition for writ of certiorari and consider her appeal pursuant
to Rule 21(a).
II. Criminal Contempt
On appeal, Defendant argues that “the trial court erred by
holding [Defendant] in criminal contempt when: (1) the trial
court failed to follow the requirements for indirect criminal
contempt; and (2) [Defendant’s] alleged conduct did not meet the
requirements for direct criminal contempt.”
“The standard of review for contempt proceedings is limited
to determining whether there is competent evidence to support
the findings of fact and whether the findings support the
conclusions of law.” Watson v. Watson, 187 N.C. App. 55, 64,
652 S.E.2d 310, 317 (2007). “Findings of fact made by the judge
in contempt proceedings are conclusive on appeal when supported
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by any competent evidence and are reviewable only for the
purpose of passing upon their sufficiency to warrant the
judgment.” Hartsell v. Hartsell, 99 N.C. App. 380, 385, 393
S.E.2d 570, 573 (1990), aff’d per curiam, 328 N.C. 729, 403
S.E.2d 307 (1991).
We must first determine whether Defendant was held in
direct criminal contempt or indirect criminal contempt. Direct
contempt exists when the act giving rise to the contempt charge
is “(1) committed within the sight or hearing of a presiding
judicial official; and (2) [i]s committed in, or in immediate
proximity to, the room where proceedings are being held before
the court; and (3) [i]s likely to interrupt or interfere with
matters then before the court.” N.C. Gen. Stat. § 5A–13(a)
(2011). Any criminal contempt “that is not direct criminal
contempt is indirect criminal contempt . . . .” N.C. Gen. Stat.
§5A-13(b)(2011). Accordingly, “[i]ndirect contempt . . . is
that which arises from matters not occurring in or near the
presence of the court, but which tend to obstruct or defeat the
administration of justice.” Atassi v. Atassi, 122 N.C. App.
356, 361, 470 S.E.2d 59, 62 (1996).
A key distinction between direct criminal contempt and
indirect criminal contempt is procedural. Direct criminal
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contempt may be punished summarily because the behavior occurs
within the sight of the judicial officer. State v. Simon, 185
N.C. App. 247, 251, 648 S.E.2d 853, 855 (2007). This is so
because the judge personally witnessed the contemptuous acts and
needs no other testimony or other evidence to determine what
occurred. However, “indirect criminal contempt . . . is
punishable only after proceedings in accordance with the
procedure required by [N.C. Gen. Stat. § ] 5A–15.” N.C. Gen.
Stat. § 5A–13(b) (2011).
Here, the trial court made the following oral findings in
connection with its decision to hold Defendant in contempt:
This defendant was due to be in court
yesterday at 2:30 and failed to show up,
gave no explanation to the Court nor to her
attorney, and that is a failure to appear.
It's not only failure to appear in terms of
the hearing simply to schedule matters, but
for trial.
Not only a failure to appear for trial, but
a failure to appear trial [sic] after having
been here in court speaking to go her [sic]
directly and she even knew or should have
known she was to be here at 2:30. And she
wasn't and the Court can't tolerate that
type of behavior from any individual because
it puts it at the disposal of individual
whims and vicissitudes and not able to
expect a person to behave as everyone else
has to behave when under the premature [sic]
of the Court.
. . .
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Ergo, I am going to find her in contempt of
Court and lock her up for 30 days and order
during that 30 days that she be allowed to
get to be evaluated by the people who do the
evaluations at Butner or Dix. I guess Butner
now.
Based on the record before us, we do not believe the
necessary elements required for a finding of direct criminal
contempt were met. Defendant’s failure to appear at the time
specified by the trial court obviously was not an overt act that
occurred in the trial court’s presence. Indeed, the very reason
she was held in contempt was her absence from the courtroom at
the relevant time period.
We find instructive our decision in Cox v. Cox, 92 N.C.
App. 702, 376 S.E.2d 13 (1989). In Cox, the trial court held
the defendant in contempt for failing to appear at a hearing
concerning alimony payments. In its contempt order, the trial
court did not indicate whether the contempt was direct or
indirect. This Court held that because the trial judge did not
have any direct knowledge of facts establishing that the
defendant’s failure to appear was willful, the proper
classification was indirect criminal contempt. Id. at 707, 376
S.E.2d at 17.
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Here, as in Cox, Defendant was held in contempt for failing
to appear in court as ordered. Because Defendant’s conduct did
not constitute direct contempt, we believe that her failure to
appear as ordered on 27 August 2012 constituted indirect
criminal contempt.
Having determined that Defendant was held in indirect
criminal contempt, we now turn to the question of whether the
appropriate procedural safeguards were followed by the trial
court. Indirect criminal contempt may be punished only in
accordance with the procedure set out by statute.
G.S. sec. 5A-13(b) provides that “[a]ny
criminal contempt other than direct criminal
contempt is indirect criminal contempt and
is punishable only after proceedings in
accordance with the procedure required by
G.S. 5A-15.” G.S. sec. 5A-15 provides for a
plenary hearing for indirect contempt . . .
and establishes, inter alia, requirements of
notice and a hearing. If a defendant is
found guilty of contempt, the judge must
make findings of fact beyond a reasonable
doubt in support of the verdict. G.S. sec.
5A-15(f).
Id. at 706, 376 S.E.2d at 16. As a part of this process, the
trial court must issue an order to the contemnor to show cause
why a finding of contempt is not warranted and the order must
give adequate notice of the acts considered to be contemptuous.
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O'Briant v. O'Briant, 313 N.C. 432, 436, 329 S.E.2d 370, 373
(1985).
Here, the record shows that Defendant never received the
statutorily required hearing or an order requiring her to show
cause why she should not be held in contempt. In its comments
from the bench, the trial court explained why it believed it
could hold Defendant in contempt without following the procedure
mandated by N.C. Gen. Stat. §15A-15:
I don’t think I have to because she was here
and I told her to come back. She was here
like everybody else. To me that is a
violation of a Court order in the Court’s
presence as far as I am concerned. She was
here.
. . .
She got this because I told her and she just
didn’t come back. And furthermore, I know
she was in the courthouse because I saw her
in the courthouse before 2:30 walking around
talking to herself. And I didn’t know what
to make of it, but I couldn’t say anything
to her.
. . .
So I think I am doing her a favor really.
Not favor. I think I am doing what any - –
any - – any judicious judge would do under
these circumstances. I can’t have people
coming in my court and I give them a direct
order and they just simply don’t do it and
then they get -- then I give more orders
that we are going to do this, we are going
to did [sic] the other, and I don’t have any
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confidence it’s going to happen at all
unless we have her body.
And so I am going to get it. We do have her
body. When they set up the evaluation at
Butner they will be able to come get her,
transport her, be evaluated, and then the
docs would know this kind of business, will
be able to tell me if there is some problem.
If there is no problem then we will release,
go for October 22nd, and that’s where we
are.
These statements demonstrate the trial court’s mistaken
belief that no procedural safeguards were required because
Defendant’s acts gave rise to direct – rather than indirect –
criminal contempt. As set out above, this was not the case.
Therefore, the contempt order cannot be sustained. See Cox, 92
N.C. App. at 707, 376 S.E.2d at 17 (vacating indirect criminal
contempt order where trial court failed to follow procedures set
out in N.C. Gen. Stat. §5A-13 and §5A-15).
Defendant also argues that the contempt order was invalid
on the additional ground that the trial court failed to make the
requisite findings of fact. We agree.
This Court has held that for purposes of an order of
contempt, a trial judge must “make findings of fact beyond a
reasonable doubt, and enter a written order.” State v. Coleman,
188 N.C. App. 144, 148, 655 S.E.2d 450, 452-53 (2008) (citing
N.C. Gen. Stat. § 5A-15(f) (2005) (emphasis added)). Moreover,
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an order for contempt is fatally defective when it is not
supported by a finding of fact that defendant’s failure to
comply with the court order was willful. See Smith v. Smith,
247 N.C. 223, 225, 100 S.E.2d 370, 371-372 (1957) (holding that
in contempt proceedings it is “necessary for the court to find
the facts supporting the judgment and especially the facts as to
the purpose and object of the contemnor, since nothing short of
‘willful disobedience’ will justify punishment”). Willfulness
in this context means an act “done deliberately and purposefully
in violation of law, and without authority, justification, or
excuse.” State v. Chriscoe, 85 N.C. App. 155, 158, 354 S.E.2d
289, 291 (1987).
Moreover, N.C. Gen. Stat. § 5A-15(f) requires that the
court’s findings be “beyond a reasonable doubt.” “Failure to
make such an indication is fatally deficient, unless the
proceeding is of a limited instance where there were no factual
determinations for the court to make.” State v. Ford, 164 N.C.
App. 566, 571, 596 S.E.2d 846, 850 (2004).
Here, the trial court made oral findings of fact — without
reducing them to writing — and then entered judgment on a form
issued by the Administrative Office of the Courts simply
stating, in pertinent part, as follows: “Defendant found in
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contempt of court and taken into custody, Defendant was to
return to court on August 27, 2012 at 2:30 P.M. and failed to do
so.” To the extent these statements can be deemed findings of
fact, they are insufficient under N.C. Gen. Stat. §5A-15(f).
For all of the reasons set out herein, we conclude that the
trial court failed to follow the mandatory statutory procedures
applicable to indirect criminal contempt orders. Accordingly,
the trial court’s order must be reversed. See In re Contempt
Proceedings Against Cogdell, 183 N.C. App. 286, 289, 644 S.E.2d
261, 263 (2007) (reversing trial court order without remand
where trial court failed to indicate that reasonable doubt
standard was used in criminal contempt proceeding).
Conclusion
For the reasons stated above, we reverse the trial court’s
contempt order.
REVERSED.
Judges HUNTER, JR. and ERVIN concur.
Report per Rule 30(e).