State v. Mastor ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-365
Filed: 6 October 2015
Iredell County, No. 14 CRS 002031
STATE OF NORTH CAROLINA
v.
ALLYSON S. MASTOR
Appeal by defendant Allyson S. Mastor from order entered 24 October 2014 by
Judge Julia Lynn Gullet in Iredell County Superior Court. Heard in the Court of
Appeals 22 September 2015.
Attorney General Roy Cooper, by Assistant Attorney General Rebecca E. Lem,
for the State.
Arnold & Smith, PLLC, by Kyle A. Frost and J. Bradley Smith, for defendant-
appellant Allyson S. Mastor.
Homesley & Wingo Law Group, PLLC, by Andrew J. Wingo and Clark D. Tew
for amicus curiae Jason E. Mastor.
TYSON, Judge.
Allyson S. Mastor (“Defendant”) appeals from order entered holding her in
criminal contempt. We affirm.
I. Factual Background
Defendant and Jason E. Mastor (“Jason”) married on 7 February 1998. The
parties separated on 8 January 2012. Three children were born of the marriage: twin
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Opinion of the Court
girls J.M.M. and M.B.M., born 20 September 2000, and J.E.M., born 24 May 2006.
On 21 September 2012, Defendant filed a complaint, in which she sought: (1) custody
and child support; (2) alimony/post-separation support; (3) equitable distribution;
and, (4) attorney’s fees. Jason filed an answer and counterclaim, in which he alleged
Defendant had been having an affair with Carl Kistel (“Kistel”) since 2010, and Kistel
was indicted on pending felony charges as an alleged sex offender.
The parties entered into a consent order (“the Consent Order”) on 18 December
2012, in which they agreed to share joint legal custody of the minor children. The
Consent Order specified “[n]either party shall have any convicted sex offender in the
presence of the minor children.”
Kistel was involved in his own civil domestic divorce matter during October
2012. At a temporary child custody hearing, Kistel admitted to placing a camera in
his shoe and “photograph[ing] up to fifteen clips of improper graphics of adult
females.” The district court entered an order finding Kistel engaged in conduct that
resulted in indictment for felony secret peeping, pursuant to N.C. Gen. Stat. § 14-202
(2013). The district court ordered Kistel to “enroll in an intensive behavioral oriented
psychotherapy program” and that he “continue to not expose the children to any
pornography, nude photographs, or sexually explicit material in the nature of
television, telephone, audio, video, etc.” The criminal charges against Kistel were
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Opinion of the Court
still pending in Lincoln County Superior Court at the time the district court entered
the Consent Order at bar.
On 24 January 2014, Jason filed a motion for contempt against Defendant for
violating the Consent Order. Jason alleged Kistel had pled guilty to felony secret
peeping, and was a convicted sex offender. Jason also averred Kistel and Defendant
were involved in a romantic relationship, and Defendant had allowed Kistel to be in
the presence of their children.
Jason attached to his motion for contempt a copy of Kistel’s 7 May 2013 guilty
plea, judgment, and sentencing. The Lincoln County Superior Court sentenced Kistel
to a suspended sentence of 5-6 months incarceration. Kistel was placed on 24 months
supervised probation and ordered to “not possess any video recording devices with
exception of a smart phone which is subject to inspection by [probation officer] at any
time; not possess any sex oriented, pornographic or video materials” and required his
“computer [to be] subject to inspection by [probation officer] at any time[.]”
A hearing was held on Jason’s motion for contempt on 28 May 2014. The
district court made the following findings of fact and entered an order on 4 June 2014:
3. That an Order was entered into by the parties on
December 18, 2012, in which the Order provided, among
other things:
B9. “Neither party shall have any convicted sex
offender in the presence of the minor children.”
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4. That Carl J. Kistel, III was convicted of felony secret
peeping on May 7, 2013 in the Superior Court of Lincoln
County.
5. That [Defendant] willfully and voluntarily allowed Mr.
Kistel to be in the presence of the minor children on New
Year’s Eve 2013, where Mr. Kistel was at the house of
[Defendant], ate food with the minor children and stayed
with [Defendant] and the minor children until after the
ball dropped.
6. That [Jason] has proved beyond a reasonable doubt that
[Defendant] has willfully and voluntarily brought the
minor children into the presence of a convicted sex offender
in violation of the December 18, 2012 consent order.
The district court held Defendant in indirect criminal contempt of the Consent Order
based on its findings of fact. The district court ordered Defendant to pay a $500.00
fine. Defendant appealed the order to superior court.
Defendant’s appeal came on for hearing in Iredell County Superior Court on 5
September 2014. The parties stipulated to all of the findings of fact set forth in the
district court’s order prior to the hearing. The only matter at issue before the superior
court was the legal sufficiency of the district court’s order, as it pertained to the term
“convicted sex offender.” The superior court entered an order holding Defendant in
criminal contempt on 24 October 2014. The superior court concluded as follows:
4. N.C.G.S. § 14-202(d) [the felony secret peeping statute]
provides that any person who secretly uses any device to
create a photographic image of another person in that room
for the purpose of arousing or gratifying the sexual desire
of any person shall be guilty of a Class I felony.
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Opinion of the Court
5. Although the term “sex offender” is not specifically
defined in the North Carolina General Statutes, N.C.G.S.
§ 14-208.5 provides that protection of the public from sex
offenders is a paramount governmental interest. The Class
I felony of secret peeping is included in the list of criminal
offenses for which a person may be required to register as
a sex offender if the sentencing judge deems it necessary.
The Court recognizes that the sentencing in the underlying
offense of Mr. Kistel did not require Mr. Kistel to register
as a sex offender, but the Court finds that the judge’s
decision to not require the defendant to register does not
change the nature of the crime. Therefore, the Court
concludes that a violation of N.C.G.S. § 14-202(d) is indeed
a sex offense within the meaning of the December 18, 2012
Consent Order.
6. It is the responsibility of the parties to a contract or
proposed consent order to make sure they understand the
terms of the contract before each party signs a consent
order.
7. That the December 18, 2012 Consent Order . . . is a valid,
enforceable order of the Court, and it was entered into
freely and voluntarily by the Defendant and Jason Mastor.
8. That the Court concludes as a matter of law that the
Defendant has, and without just cause, failed to comply
with the previous Order of the Court and as such is in
indirect criminal contempt pursuant to N.C.G.S. § 5A-
11(a)(3).
(emphasis supplied). The superior court also imposed a $500.00 criminal fine against
Defendant.
Defendant gave timely notice of appeal to this Court.
II. Issue
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Opinion of the Court
Defendant argues the trial court erred by holding her in criminal contempt for
willfully violating the Consent Order provision which forbade her from allowing the
children to be in the presence of a convicted sex offender.
Defendant contends (1) Kistel is not a “convicted sex offender” under North
Carolina law; (2) the term “convicted sex offender” is unconstitutionally vague
because it is undefined in the North Carolina criminal statutes; and (3) Defendant’s
noncompliance with the Consent Order was not “willful.”
III. Standard of Review
Defendant appeals an order holding her in criminal contempt under N.C. Gen.
Stat. § 5A-11(a)(3) (2013). A contempt hearing is a non-jury proceeding.
The standard of appellate review for a decision rendered in
a non-jury trial 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. Findings of fact are binding on appeal if there
is competent evidence to support them, even if there is
evidence to the contrary.
Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (2001) (citations
omitted).
“The trial court’s conclusions of law drawn from the findings of fact are
reviewable de novo.” Curran v. Barefoot, 183 N.C. App. 331, 335, 645 S.E.2d 187, 190
(2007) (citation omitted).
IV. Analysis
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Opinion of the Court
A. “Sex Offender”: North Carolina Law and the Consent Order
1. North Carolina Law
Defendant argues she did not violate the Consent Order because Kistel is not
a “convicted sex offender” under North Carolina law. Defendant attempts to argue
the term “convicted sex offender,” as used in the Consent Order, carries the same
legal meaning as the term “registered sex offender.” Defendant contends Kistel is not
a “convicted sex offender” because Kistel was not required to register as a sex
offender. We disagree.
The fact that the term “convicted sex offender” is not specifically defined in the
North Carolina criminal statutes does not foreclose this Court’s ability to determine
the intended meaning of the words.
“Questions of statutory interpretation are questions of law[.] . . . The primary
objective of statutory interpretation is to give effect to the intent of the legislature.
The plain language of a statute is the primary indicator of legislative intent.” First
Bank v. S & R Grandview, L.L.C., __ N.C. App. __, __, 755 S.E.2d 393, 394 (2014)
(internal citations omitted).
“If the statutory language is clear and unambiguous, the court eschews
statutory construction in favor of giving the words their plain and definite meaning.
When, however, a statute is ambiguous, judicial construction must be used to
ascertain the legislative will.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277
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(2005) (citations and internal quotation marks omitted). “Statutory language is
ambiguous if it is fairly susceptible of two or more meanings.” Purcell v. Friday
Staffing, __ N.C. App. __, __, 761 S.E.2d 694, 698 (2014) (citations and internal
quotation marks omitted).
Black’s Law Dictionary defines “sexual offense” as “[a]n offense involving
unlawful sexual conduct, such as prostitution, indecent exposure, incest, pederasty,
and bestiality.” Black’s Law Dictionary, 712 (10th ed. 2014).
Kistel pled guilty to the criminal offense of felony secret peeping under N.C.
Gen. Stat. § 14-202. It is unclear from the record under which subsection — (d), (e),
or (f) — Kistel pled guilty. Both N.C. Gen. Stat. §§ 14-202(d) and (f) explicitly prohibit
secret peeping “for the purpose of arousing or gratifying the sexual desire of any
person.” N.C. Gen. Stat. §§ 14-202(d), (f) (2013) (emphasis supplied).
An individual convicted of felony secret peeping under N.C. Gen. Stat. §§ 14-
202(d)-(f) may be required to register as a sex offender “[i]f the sentencing court rules
that the person is a danger to the community” and registration would “further the
purposes” of the Sex Offender Registration Program. N.C. Gen. Stat. § 14-202(l)
(2013). N.C. Gen. Stat. § 14-202(e) does not explicitly use the language: “for the
purpose of arousing or gratifying the sexual desire of any person.” N.C. Gen. Stat. §§
14-202(d), (f). Its inclusion as a reportable offense, subject to enrollment under the
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Opinion of the Court
North Carolina Sex Offender Registration Program clearly indicates the offense is
one of a sexual nature.
The conduct proscribed by the felony secret peeping statute constitutes a
“sexual offense,” based on the Black’s Law Dictionary definition, and subject to the
statute’s express limitation in subsections (d) and (f) that a defendant’s actions are
“for the purpose of arousing or gratifying the sexual desire of any person.” Id.
(emphasis supplied).
Kistel pled guilty to felony secret peeping under the statute containing the
language above, and was sentenced under the felony secret peeping statute. The trial
court could have exercised its discretion to require Kistel to register as a sex offender.
Kistel is a convicted sex offender.
Defendant argues only those individuals convicted of offenses, which
statutorily require them to actually register as sex offenders, or whose sentence
imposed by the court requires them to register as sex offenders, are in fact convicted
sex offenders. Defendant asserts “convicted sex offender” is synonymous with
“registered sex offender.” Defendant’s argument is misplaced. If Defendant’s
assertion is correct, there would be no need for the General Assembly to set forth
which convicted sex offenders are required to enroll in the state’s sex offender
registry, those which are not, and those offenses for which enrollment is within the
trial court’s discretion. See generally N.C. Gen. Stat. § 14-202(l).
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This Court has recognized not all convicted sex offenders, such as Kistel, are
required to enroll in the sex offender registry. See N.C. Gen. Stat. § 14-208.5 (2013).
In State v. Pell, this Court analyzed the requirement that an individual convicted of
a sex offense pose a “danger to the community” in order to compel sex offender
registration. We held “[w]hen examining the purposes of the sex offender registration
statute, it is clear that ‘danger to the community’ refers to those sex offenders who
pose a risk of engaging in sex offenses following release from incarceration or
commitment.” 211 N.C. App. 376, 379, 712 S.E.2d 189, 191 (2011). A finding of
“danger to the community” by the sentencing court would be unnecessary and
redundant were we to accept Defendant’s contention. Id.
Kistel’s guilty plea to felony secret peeping stemmed from behavior in which
he hid a camera in his shoe and intentionally positioned his shoe in an area to allow
him to film up and underneath women’s skirts and dresses, without their knowledge
or consent. The inherent sexual nature of Kistel’s conduct is apparent. Kistel’s
behavior was motivated by “the purpose of arousing or gratifying [his] sexual desire”
and is a sexual crime. N.C. Gen. Stat. § 14-202(d). Kistel pled guilty to a sex offense,
and after judgment was entered thereon, became a “convicted sex offender” under
North Carolina law, regardless of whether the sentencing court required him to enroll
in the sex offender registry.
2. “Convicted Sex Offender” as Intended in the Consent Order
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Opinion of the Court
Kistel is a “convicted sex offender” within the meaning of the Consent Order,
to support Defendant’s criminal contempt.
On appeal to the superior court, the parties stipulated to “the findings and the
underlying basis of the District Court Order.” The district court’s findings of fact
provided, in pertinent part:
5. That [Defendant] willfully and voluntarily allowed Mr.
Kistel to be in the presence of the minor children on New
Year’s Eve 2013, where Mr. Kistel was at the house of
[Defendant], ate food with the minor children and stayed
with [Defendant] and the minor children until after the
ball dropped.
6. That [Jason] has proved beyond a reasonable doubt that
Carl J. Kistel, III is a convicted sex offender.
“[S]tipulations duly made during the course of a trial constitute judicial
admissions on the parties and [dispense] with the necessity of proof.” State v. Simon,
185 N.C. App. 247, 255, 648 S.E.2d 853, 858 (2007) (citation and quotation marks
omitted). The district court found as fact and beyond a reasonable doubt that Kistel
was a “convicted sex offender,” as that term was agreed to by the parties and included
in the Consent Order. The parties stipulated to this finding of fact on appeal to the
superior court. Defendant is bound by this stipulation. See Estate of Carlsen v.
Carlsen, 165 N.C. App. 674, 679, 599 S.E.2d 581, 585 (2004) (holding stipulation
signed by parties prior to trial was binding as a judicial admission).
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Opinion of the Court
The circumstances surrounding the Consent Order also indicate Jason’s
concern that Kistel might become a “convicted sex offender,” for purposes of that
order. Jason’s answer to Plaintiff’s original complaint made numerous references to
Kistel’s status as an “alleged sex offender” while the indictment was pending, and his
concern for the well-being and safety of his children, if they were allowed to be in
Kistel’s presence. The record clearly shows the inclusion of the “convicted sex
offender” provision in the Consent Order was specifically targeted at Defendant’s
relationship with Kistel. Kistel’s felony secret peeping charges, which Jason knew
of, were pending at this time, and became final upon Kistel’s guilty plea.
Defendant’s “stipulat[ion] to the findings and the underlying basis of the
District Court Order” also shows Kistel is a “convicted sex offender,” both under
North Carolina law and within the meaning of the Consent Order, regardless of
whether he was required by the sentencing judge to enroll in the sex offender registry.
This argument is overruled.
B. Impermissible Vagueness
Defendant argues she cannot be held in criminal contempt for violating the
Consent Order because the term “sex offender” is unconstitutionally vague.
Defendant makes this argument for the first time, on appeal.
“A constitutional issue not raised at trial will generally not be considered for
the first time on appeal.” State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808
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(2009) (citation and quotation marks omitted). Here, Defendant did not raise or argue
any constitutional vagueness objections, before either the district or superior courts.
Defendant has failed to preserve this issue for appellate review. We decline to review
Defendant’s constitutional argument for the first time on appeal. This argument is
dismissed.
C. “Willfullness”
Defendant argues she cannot be held in criminal contempt for violating the
Consent Order because she did not do so willfully.
A party “may be held in contempt for failure to comply with the terms of an
agreement, only if [her] failure is willful.” Cavenaugh v. Cavenaugh, 317 N.C. 652,
660, 347 S.E.2d 19, 25 (1986) (emphasis in original) (citation omitted).
Defendant’s argument is based on her primary contention, discussed supra,
that the term “convicted sex offender” is ambiguous as it appears in the North
Carolina statutes. Defendant argues she did not willfully violate the Consent Order
by allowing her children to be in the presence of a “convicted sex offender,” because
of the ambiguity of the term. We have determined the term “convicted sex offender”
is not ambiguous, either under the North Carolina criminal statutes, or the Consent
Order.
The district and superior courts found Defendant “willfully and voluntarily
allowed Mr. Kistel to be in the presence of the minor children[.]” While Defendant
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may have believed or hoped the terms “convicted sex offender” and “registered sex
offender” were synonymous, the unchallenged findings of fact from the district court,
to which the parties stipulated, and competent evidence in the record and from the
contempt hearing support this finding. This argument is overruled.
V. Conclusion
The district court found and determined, beyond a reasonable doubt, Kistel
was a “convicted sex offender,” as provided in the Consent Order. Kistel pled guilty
to felony secret peeping. North Carolina law and the Consent Order support the
district court’s determination. The parties’ stipulated, before the superior court, to
the district court’s finding of fact that Kistel was a “convicted sex offender.”
Defendant is bound by this determination.
Defendant failed to raise her constitutional vagueness argument before either
trial court. Defendant has failed to preserve this argument for appellate review.
The superior court’s finding of fact that Defendant willfully allowed her
children to be in the presence of a “convicted sex offender” is supported by the
stipulated findings of fact and competent evidence. The superior court’s findings of
fact support its determination that Defendant was in indirect criminal contempt of
the Consent Order. The superior court’s order is affirmed.
AFFIRMED.
Judges BRYANT and DIETZ concur.
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