State v. Mitchell , 259 N.C. App. 866 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-212
Filed: 5 June 2018
Wake County, No. 15 CRS 4737, 15 CRS 347, 15 CRS 200503, 15 CRS 5831-32
STATE OF NORTH CAROLINA,
v.
KEVIN JONATHAN MITCHELL, Defendant.
Appeal by defendant from judgments entered on or about 13 January 2016 and
15 January 2016 by Judge G. Wayne Abernathy in Superior Court, Wake County.
Heard in the Court of Appeals 27 September 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N.
Callahan, for the State.
Ward, Smith & Norris, P.A., by Kirby H. Smith, III, for defendant.
STROUD, Judge.
Defendant Kevin Jonathan Mitchell (“defendant”) appeals from his convictions
of felonious stalking, felonious obstruction of justice, and felonious attempted
obstruction of justice. On appeal, defendant argues that the trial court erred by
finding that the “Conditions of Release and Release Order” were in effect while
defendant was in custody of the Wake County Detention Center and denying his
motion to dismiss the felony stalking charge. He further argues that the court erred
by denying his motion to dismiss the felony obstruction of justice charges. For
reasons stated below, we find no error with the trial court’s judgment.
Background
STATE V. MITCHELL
Opinion of the Court
The State’s evidence at trial showed these facts. On 26 December 2014,
defendant was in a romantic relationship and living with Nancy1 and her four
children. Defendant is the father of Nancy’s youngest son. That evening, Nancy’s
daughters used her cell phone to text their father. The girls gave the phone back to
their mother, and Nancy walked to the bedroom to read the texts. Defendant then
entered the room, snatched the phone from Nancy’s hand, read the text, and jumped
on her. He choked Nancy and pushed her down on the bed. Nancy took the phone
back from defendant, and then he asked her for keys to the house. While Nancy was
looking for her set of keys, defendant sucker punched her in the face. Defendant left
and Nancy called the police, who took photographs of Nancy’s injuries and eventually
spotted defendant walking down the road nearby. Defendant was arrested for assault
on a female2 and taken to the Wake County Detention Center.
On 26 December 2014, after defendant was arrested, a magistrate judge
entered an order entitled “Conditions of Release and Release Order” (AOC-CR-200,
Rev. 12/12) (“Order 1”), which denied bond and placed defendant on a 48-hour
1 A pseudonym is used to protect the victim’s identity and for ease of reading.
2 The parties stipulated in the record on appeal that defendant was charged with assault on a
female on 26 December 2014 in Wake County File No. 14-CR-229975 and then “[s]ubsequently, on
January 7, 2015, [defendant] was charged with habitual misdemeanor assault in Wake County File
No. 15-CR-200503, the basis of this charge being the December 26, 2014 assault on a female charge in
Wake County File No. 14-CR-229975.” The parties also stipulated that “[n]one of the documents in
Wake County File No. 14-CR-229975 have been included in this Record on Appeal.”
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Opinion of the Court
domestic violence hold.3 In the top portion of the form, the preprinted language
states:
To The Defendant Named Above, you are ORDERED to
appear before the Court as provided above and at all
subsequent continued dates. If you fail to appear, you will
be arrested and you may be charged with the crime of
willful failure to appear. You also may be arrested without
a warrant if you violate any condition of release in this
Order or in any document incorporated by reference.”
Just below this statement, the following statement was typed into a blank area of the
form: “NOT TO HAVE ANY CONTACT WITH [NANCY].” Below this, the magistrate
checked the box with this language: “Your release is not authorized.”
The lower section of the form is entitled: “ORDER OF COMMITMENT.” This
portion of the form directed the Wake County Detention Center to hold defendant “for
the following purpose: DV HOLD.” It also stated that defendant was to be produced
“at the first session of District or Superior Court held in this county after entry of this
Order or, if no session is held before” 28 December 2014, then he must be brought
before a magistrate “at that time to determine conditions of pretrial release.”
The back of the Order has four sections which are filled in by either a Judicial
Official or Jailer for each court appearance of the defendant. The four sections, from
top to bottom, are:
3 See N.C. Gen. Stat. § 15A-534.1(b) (2017), “Crimes of domestic violence; bail and pretrial
release” (“A defendant may be retained in custody not more than 48 hours from the time of arrest
without a determination being made under this section by a judge. If a judge has not acted pursuant
to this section within 48 hours of arrest, the magistrate shall act under the provisions of this section.”).
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STATE V. MITCHELL
Opinion of the Court
CONDITIONS OF RELEASE MODIFICATIONS
SUPPLEMENTAL ORDERS FOR COMMITMENT
DEFENDANT RECEIVED BY DETENTION FACILITY
DEFENDANT RELEASED FOR COURT APPEARANCE
The first handwritten notes by the judge under “CONDITIONS OF RELEASE
MODIFICATIONS” state that defendant’s conditions of release were modified on 28
December 2014 to an $8,000.00 secured bond and “NCWV,” an acronym for “no
contact with victim.” The next modification was on 29 December 2014, when the
secured bond was increased to $10,000.00 and “no contact with victim.”4
Nancy filed a complaint for a Domestic Violence Protective Order under N.C.
General Statutes Chapter 50B against defendant alleging he had committed acts of
domestic violence against her, and an ex parte domestic violence protective order (“ex
parte DVPO”) was issued on 29 December 2014, effective until a hearing scheduled
on 5 January 2015. Defendant was served with the ex parte DVPO in jail. Nancy did
not appear at the 5 January 2015 hearing, so the complaint was dismissed and the
ex parte order expired on that date.
On 7 January 2015, a warrant was issued for defendant’s arrest for habitual
misdemeanor assault in File No. 15 CRS 200503 and another order entitled
“Conditions of Release and Release Order” (“Order 2”) was entered on the same AOC
4 On 25 September 2017, the State filed a motion to amend the record on appeal, noted that
the original record contains only the front page of the Conditions of Release and Release Orders, and
asked this Court to allow the record on appeal to be amended so that the back side of these orders may
be included. We grant this motion so that we may fully address this issue on appeal.
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STATE V. MITCHELL
Opinion of the Court
form as Order 1. In Order 2, defendant’s release was authorized upon execution of a
secured bond in the amount of $20,000.00. Order 2 includes the exact same provision
of “NOT TO HAVE ANY CONTACT WITH [NANCY]” as Order 1. He was also
required to provide fingerprints. In the portion of the form entitled “Additional
Information” was “Bond doubled pursuant to statute. Defendant has a $10,000.00
bond for 14CR229975.” The Order of Commitment portion of the form directed that
if defendant was not presented before a district or superior court judge by 9 January
2015, he must be brought before a magistrate “at that time to determine conditions
of pretrial release.” On the back of Order 2, in “Conditions of Release Modifications,”
defendant’s conditions of release were modified on 8 January 2015 to a $40,000.00
secured bond and no contact with victim.
On 29 January 2015, the assault on a female charge in File No. 14 CR 229965
was apparently dismissed, so Order 1 was no longer in effect5. Nancy received six
letters from defendant between 2 January 2015 and 23 February 2015. The first
letters were cordial but escalated to threats when she did not respond or reply. Nancy
testified at trial that the letters led her to file for a second domestic violence protective
order against defendant, although there is no Chapter 50B order other than the one
issued on 29 December 2014 in the record on appeal. Nancy also received an envelope
5 As noted above, the parties stipulated that the record on appeal contains no further
documents from File No. 14 CR 229975. The back side of Order 1 contains the modification entry:
“Dismissed” and is dated 29 January 2015, so with no additional information available, we can only
presume that this means that file itself must have been dismissed at that time.
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Opinion of the Court
marked “Return to Sender. Not Deliverable as Addressed. Unable to Forward”
addressed to the Federal Building on Fayetteville Street in Raleigh with her address
as the return address. Nancy testified that she did not write this letter or know
anything about it before it arrived at her house. The letter contained a bomb threat
and demand for one million dollars, purportedly made by Nancy. Defendant was later
questioned and eventually admitted to writing the letter and confirmed to
investigators there was no bomb in the building. Defendant was indicted for assault
on a female and habitual misdemeanor assault on 23 February 2015 in Wake County
File No. 15 CRS 200503.
Another letter purportedly written by Nancy was delivered to the Wake County
District Attorney’s Office on 25 March 2015. An investigator in the office was told
the letter had been sent by way of “jail mail,” which means that it was sent by an
inmate from the Wake County Detention Center. This letter stated that Nancy had
made false allegations of assault against defendant and made demands and threats
of committing a crime or terrorist attack if those demands were not met.
Investigators spoke with Nancy about the letter, and she denied writing or sending
it. Defendant was charged with felony stalking while a court order is in effect based
upon the letters to Nancy and two counts of felony obstruction of justice based upon
the letters to the Federal Building and the District Attorney’s office.
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STATE V. MITCHELL
Opinion of the Court
A jury trial was held on these charges on 11 January 2016 in Wake County
Superior Court. At the close of all the evidence but before the case went to the jury,
the trial court granted defendant’s motion to dismiss the original obstruction of
justice charge in 15 CRS 5832 regarding the Federal Building bomb threat, since the
evidence showed the letter was not addressed properly, so the offense was never
completed. Instead, the trial court allowed the lesser included offense of attempted
obstruction of justice to be submitted to the jury in its place. The jury found
defendant guilty of assault on a female, felonious stalking, felonious obstruction of
justice, and felonious attempted obstruction of justice. Defendant admitted to his
status as a habitual felon. The trial court entered judgment on or about 13 January
2016 and an amended judgment on or about 15 January 2016. Defendant timely
appealed to this Court.
Analysis
I. Motion to Dismiss Felony Stalking While Court Order in Effect Charge
Defendant’s first argument on appeal is that the trial court erred in denying
defendant’s motion to dismiss the felony stalking charge by finding Orders 1 and 2
were in effect while defendant was in custody. The trial court concluded that when
defendant sent the letters, he was subject to three orders: (1) Order 1; (2) Nancy’s
first ex parte DVPO; and (3) Order 2. Defendant argues that conditions of release
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Opinion of the Court
stated in Orders 1 and 2 do not apply until the person has been released from custody,
and since defendant was in jail when he wrote the letters, the orders did not apply.
As the issue is whether the trial court reached a proper conclusion of law, we
review de novo. See, e.g., State v. Barnhill, 166 N.C. App. 228, 230-31, 601 S.E.2d
215, 217 (2004) (“Although the trial court’s findings of fact are generally deemed
conclusive when supported by competent evidence, a trial court’s conclusions of law .
. . [are] reviewable de novo. . . . [T]he trial court’s conclusions of law must be legally
correct, reflecting a correct application of applicable legal principles to the facts
found.” (Citations and quotation marks omitted)).
Defendant was charged with felonious stalking under subsection (d) of N.C.
Gen. Stat. § 14-277.3A (2017): “A defendant who commits the offense of stalking when
there is a court order in effect prohibiting the conduct described under this section by
the defendant against the victim is guilty of a Class H felony.” N.C. Gen. Stat. § 14-
277.3A(d) (emphasis added). The offense of stalking is defined by N.C. Gen. Stat. §
14-277.3A(c):
A defendant is guilty of stalking if the defendant willfully
on more than one occasion harasses another person
without legal purpose or willfully engages in a course of
conduct directed at a specific person without legal purpose
and the defendant knows or should know that the
harassment or the course of conduct would cause a
reasonable person to do any of the following:
(1) Fear for the person’s safety or the safety of the person’s
immediate family or close personal associates.
(2) Suffer substantial emotional distress by placing that
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Opinion of the Court
person in fear of death, bodily injury, or continued
harassment.
Defendant does not argue the trial court should have dismissed the charge of
stalking under N.C. Gen. Stat. § 14-277.3A(c), which is a Class A1 misdemeanor.
Defendant challenges only the elevation of the charge to a Class H felony based upon
the existence of a “court order in effect prohibiting the conduct described.” N.C. Gen.
Stat. § 14-277.3A(d).
Under N.C. Gen. Stat. § 15A-534(a) (2017), a judicial official may place various
restrictions on a defendant as “conditions of pretrial release[,]” including “restrictions
on the travel, associations, conduct, or place of abode of the defendant[.]” (Emphasis
added). And under N.C. Gen. Stat. § 15A-534.1, additional conditions may be placed
on a defendant charged with various crimes of domestic violence. On appeal,
defendant argues that he was not subject to the conditions of pretrial release in
Orders 1 and 2 because he never posted his bond and instead remained in jail during
the entire time period when the letters were sent. He argues he was not “released”
so a “condition of release” could not apply to him.
Defendant’s argument is deceptively simple and focused on the title of the
Orders and on the word “release,” while ignoring the substance of the detailed
provisions of the Orders. Although Orders 1 and 2 are each titled as “Conditions of
Release and Release Order,” we look to the entirety of an order when interpreting it
and focus on the content, rather than the title, of the order. See, e.g., Cleveland
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Constr., Inc. v. Ellis-Don Constr. Inc., 210 N.C. App. 522, 535, 709 S.E.2d 512, 522
(2011)(“Court judgments and orders must be interpreted like other written
documents, not by focusing on isolated parts, but as a whole.” (Citation and quotation
marks omitted)); McNair v. Goodwin, 262 N.C. 1, 5, 136 S.E.2d 218, 221 (1964) (“The
effect of an order or judgment is not determined by its recitals, but by what may or
must be done pursuant thereto.”).
The trial court’s form orders in this case, despite the title, contain much more
than just conditions of release. Under the title of the form is a reference to two
articles of Chapter 15A of the North Carolina General Statutes: Article 25, which
deals with pretrial commitment to a detention facility, and Article 26, which contains
provisions related to bail and pretrial release. The top portion of the form includes
provisions based upon Article 25, and the bottom portion of the form, entitled “Order
of Commitment,” includes provisions based upon Article 26.
Under N.C. Gen. Stat. § 15A-521(a) (2017):
Every person charged with a crime and held in custody
who has not been released pursuant to Article 26 of this
Chapter, Bail, must be committed by a written order of the
judicial official who conducted the initial appearance as
provided in Article 24 to an appropriate detention facility
as provided in this section.
Section (b) describes what must be in the order of commitment:
(b) Order of Commitment; Modification. -- The order of
commitment must:
(1) State the name of the person charged or identify him if
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Opinion of the Court
his name cannot be ascertained.
(2) Specify the offense charged.
(3) Designate the place of confinement.
(4) If release is authorized pursuant to Article 26 of this
Chapter, Bail, state the conditions of release. If a separate
order stating the conditions has been entered, the
commitment may make reference to that order, a copy of
which must be attached to the commitment.
(5) Subject to the provisions of subdivision (4), direct, as
appropriate, that the defendant be:
a. Produced before a district court judge pursuant to under
Article 29 of this Chapter, First Appearance before District
Court Judge,
b. Produced before a district court judge for a probable
cause hearing as provided in Article 30 of this Chapter,
Probable-Cause Hearing,
c. Produced for trial in the district or superior court, or
d. Held for other specified purposes.
(6) State the name and office of the judicial official making
the order and be signed by him.
N.C. Gen. Stat. § 15A-521(b).
“Form AOC-CR-200, Rev. 12/12,” the form order the trial court used for Orders
1 and 2, is a comprehensive order which includes both conditions of release and
commitment. This order can be modified but remains in effect from the time a
defendant is arrested until the charges upon which the order is based are dismissed
or the defendant is convicted of the crime. See generally N.C. Gen. Stat. §§ 15A-521;
15A-534. Upon conviction, the trial court would enter a judgment or other disposition
as appropriate under N.C. General Statutes Chapter 15A, Subchapter XIII. But the
order remains in effect during the entire prosecution. At each step of the process, this
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Opinion of the Court
order memorializes the trial court’s determinations governing the defendant, whether
the defendant is held in a detention facility or released.
Some of the terms of the order would apply whether the defendant is
committed or released, while others would apply only in one circumstance or the
other. For example, if a defendant posts the bond set for his release, he is released.
If he does not post the bond, he is not released, but the order remains in effect. Some
preprinted options of the order are procedural facts that could apply in a particular
case and are not pretrial release conditions, although they are relevant to the types
of conditions which may be placed upon a defendant. Here, the trial court’s typed
addition “NOT TO HAVE ANY CONTACT WITH [NANCY]” contains no additional
language to indicate this provision would only apply after defendant had met
conditions of release and was released. But the order remains in effect until the
charges are disposed of, whether the defendant is committed or released.
Order 1 was “in effect” as of 26 December 2014 until 29 January 2015, when
the assault on a female charges in File No. 14 CR 229975 were apparently dismissed.
On 26 December 2014, the magistrate added a provision to Order 1 stating “NOT TO
HAVE ANY CONTACT WITH [NANCY].” This provision had no conditions or
limitations; none of the preprinted provisions on the form above this addition were
checked and they did not apply to defendant. Below the added provisions, the
magistrate checked the box indicating “[y]our release is not authorized” and ordered
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Opinion of the Court
the Wake County Detention Center to hold defendant for a “DV hold,” or domestic
violence hold under N.C. Gen. Stat. § 15A-534.1(b).
Order 1 was modified several times by the trial court, as indicated by the
handwritten notations on the back. On 28 December 2014, defendant’s bond was set
at $8,000.00 secured and on 29 December 2014, it was increased to $10,000.00, but
both modifications included “NCWV.” Thus, the “CONDITION OF RELEASE
MODIFICATIONS” were the setting of the bond and increase of the bond; there was
no modification to the no-contact provision originally stated on the front of the form,
since the trial court noted “NCWV” on the reverse side of the order to show that this
original provision remained in effect. As explained above, the charges for which this
Order was entered were apparently dismissed on 29 January 2015, so Order 1 ceased
to be “in effect” on that date.
Order 2 was based upon charges of habitual misdemeanor assault in File No.
15 CR 200503. It was entered by the magistrate judge on 7 January 2015. Order 2
includes the exact same provision of “NOT TO HAVE ANY CONTACT WITH
[NANCY]” as Order 1 , in the same place on the form and not subject to any other
conditions. On Order 2, defendant was also required to provide fingerprints. In the
portion of the form entitled “Additional Information” the court entered: “Bond
doubled pursuant to statute. Defendant has a $10,000.00 bond for 14CR229975.” The
Order of Commitment portion of the form directed that if defendant was not
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Opinion of the Court
presented before a district or superior court judge by 9 January 2015, he must be
brought before a magistrate “at that time to determine conditions of pretrial release.”
Order 2 remained in effect until 13 January 2016, when the charge of habitual
misdemeanor assault was “consolidated with 15 CRS 4737,” the habitual felon
charges.
Therefore, either Order 1, Order 2, or both were “in effect” from 26 December
2014 until 13 January 2016.6 Defendant sent the first letter to Nancy on 2 January
2015 and the last letters were sent on 23 February 2015, so all the letters to Nancy
were sent when an order was “in effect.” N.C. Gen. Stat. § 14-277.3A(d). We must
now determine whether the orders also “prohibit[ed] the conduct described under this
section by the defendant against the victim[.]” Id.
The “conduct described under this section” in N.C. Gen. Stat. § 14-277.3A(d)
includes “harassment” and the definition of harassment includes contacting a person
in any manner “including written or printed communication or transmission,
telephone, cellular, or other wireless telephonic communication, facsimile
transmission, pager messages or transmissions, answering machine or voice mail
messages or transmissions, and electronic mail messages or other computerized or
electronic transmissions….” N.C. Gen. Stat. § 14-277.3A(b)(2). Defendant was
6 Defendant does not dispute that the ex parte DVPO which was in effect from 26 December
2014 to 5 January 2015 would be a “court order in effect prohibiting the conduct described under” N.C.
Gen. Stat. § 14-277.3A. In addition, this time period was also covered by Order 1, so the additional
prohibition of the ex parte DVPO is superfluous.
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Opinion of the Court
ordered not to contact Nancy, and “contact,” including written contact by a letter, is
“conduct described under this section.” N.C. Gen. Stat. § 14-277.3A(d).
In addition, defendant’s argument focusing on just the word “release” in Orders
1 and 2 is not consistent with the specific terms or legislative intent of the stalking
offense punishable under N.C. Gen. Stat. § 14-277.3A. We interpret the prohibition
on “contact” with Nancy in Orders 1 and 2 in a manner in keeping with the intent of
N.C. Gen. Stat. § 14-277.3A, which is set forth within the statute:
a) Legislative Intent.--The General Assembly finds that
stalking is a serious problem in this State and nationwide.
Stalking involves severe intrusions on the victim’s personal
privacy and autonomy. It is a crime that causes a long-
lasting impact on the victim’s quality of life and creates
risks to the security and safety of the victim and others,
even in the absence of express threats of physical harm.
Stalking conduct often becomes increasingly violent over
time.
The General Assembly recognizes the dangerous
nature of stalking as well as the strong connections
between stalking and domestic violence and between
stalking and sexual assault. Therefore, the General
Assembly enacts this law to encourage effective intervention
by the criminal justice system before stalking escalates into
behavior that has serious or lethal consequences. The
General Assembly intends to enact a stalking statute that
permits the criminal justice system to hold stalkers
accountable for a wide range of acts, communications, and
conduct. The General Assembly recognizes that stalking
includes, but is not limited to, a pattern of following,
observing, or monitoring the victim, or committing violent
or intimidating acts against the victim, regardless of the
means.
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Opinion of the Court
N.C. Gen. Stat. § 14-277.3A(a) (emphasis added).
Both orders stated “NOT TO HAVE ANY CONTACT WITH [NANCY].”
Defendant does not argue that the threatening letters to Nancy do not fall under the
type of communication prohibited by N.C. Gen. Stat. § 14-277.3A; he argues only that
the requirement that he was “NOT TO HAVE ANY CONTACT WITH [NANCY]” did
not apply to him while he was in detention. As discussed above, the requirement as
stated on Order 1 and Order 2 was an independent provision prohibiting certain
conduct: contacting Nancy. By its terms, the prohibition was not conditioned on
defendant’s release or commitment but was required as long as the Order was in
effect. We hold that the trial court did not err in denying defendant’s motion to
dismiss the felony stalking charge.
II. Motion to Dismiss Felony Obstruction of Justice Charges
Defendant’s second and final argument on appeal is that the trial court erred
by denying his motion to dismiss the felony obstruction of justice charges because the
crimes can be committed without deceit and intent to defraud. Defendant claims that
the trial court concluded that deceit and intent to defraud are not necessary and
inherent elements of obstruction of justice.
The indictment in 15 CRS 4737 alleged that defendant
unlawfully, willfully and feloniously obstructed justice
with deceit and intent to defraud by intentionally giving
false information to the District Attorney’s Office by
writing a letter purporting to be from the victim in Wake
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Opinion of the Court
County case 15 CRS 200503 recanting her earlier
statements, implicating the charging officer in highly
unethical and illegal behavior, and threatening to place
explosives in the Wake County Courthouse. This act was
done in violation of the common law of North Carolina and
against the peace and dignity of the State.
Similarly, the indictment in 15 CRS 5832 alleged defendant
unlawfully, willfully and feloniously obstructed justice
with deceit and intent to defraud by intentionally sending
a letter purporting to be from the victim in his pending
court cases and containing a bomb threat to the personnel
of the United States Federal Courthouse located on New
Bern Avenue, Raleigh, NC 27601. This act was done in
violation of the common law of North Carolina and against
the peace and dignity of the State.
At trial, defendant argued that the obstruction of justice charges should be
misdemeanors, not felonies, based on State v. Glidden, 317 N.C. 557, 346 S.E.2d 470
(1986). The trial court granted defendant’s motion to dismiss the obstruction of
justice charge in 15 CRS 5832, since the evidence showed that the offense was never
completed -- the letter never reached the Federal Building -- and instead instructed
on the lesser included offense of attempted obstruction of justice, a class I felony. But
the court refused to dismiss the remaining obstruction of justice felony charges based
upon defendant’s argument that to be a felony, the offense must always involve deceit
and fraud. Defendant now argues this was error and that the North Carolina
Supreme Court mandated a definitional test to elevate misdemeanor offenses to
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felonies under N.C. Gen. Stat. § 14-3(b) (2017).7, and the obstruction of justice
offenses at issue here -- which involved sending threatening letters -- should not have
been elevated to a felony because such offense “does not by its definition include the
elements of secrecy and malice[.]”
Glidden, which defendant relies on, is inapposite to the present case. In
Glidden, “[t]he issue before this Court [was] whether the misdemeanor of
transmitting an unsigned threatening letter in violation of N.C.G.S. § 14-394 is an
offense which is made a felony by N.C.G.S. § 14-3(b).” Glidden, 317 N.C. at 558, 346
S.E.2d at 470. The defendant in Glidden was charged under N.C. Gen. Stat. § 14-394
(2017), which makes transmission of an anonymous threatening letter a Class 1
misdemeanor; the State then sought to elevate the charge to a felony based upon N.C.
Gen. Stat. § 14-3(b). The North Carolina Supreme Court held that the offense of
transmitting an unsigned letter did not fall within the class of misdemeanors under
N.C. Gen. Stat. § 14-3(b) punishable as felonies because “the offense of transmitting
unsigned threatening letters does not by definition include the elements of secrecy
and malice.” Glidden, 317 N.C. at 561, 346 S.E.2d at 473.
Here, defendant was charged with common law obstruction of justice; he was
not charged under N.C. Gen. Stat. § 14-394 (2017). While it is true that at common
7 N.C. Gen. Stat. Ann. § 14-3(b): “If a misdemeanor offense as to which no specific punishment
is prescribed be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender
shall, except where the offense is a conspiracy to commit a misdemeanor, be guilty of a Class H felony.”
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law, obstruction of justice was ordinarily treated as a misdemeanor offense, this
Court has repeatedly recognized felony obstruction of justice as a crime under N.C.
Gen. Stat. § 14-3(b). See, e.g., State v. Cousin, 233 N.C. App. 523, 537, 757 S.E.2d
332, 342-43 (2014) (“The elements of common law felonious obstruction of justice are:
(1) the defendant unlawfully and willfully; (2) obstructed justice; (3) with deceit and
intent to defraud.”); State v. Blount, 209 N.C. App. 340, 343, 703 S.E.2d 921, 924
(2011) (“Common law obstruction of justice, the offense with which defendant was
charged, is ordinarily a misdemeanor. N.C. Gen. Stat. § 14-3(b) provides that a
misdemeanor may be elevated to a felony if the indictment alleges that the offense is
infamous, done in secrecy and malice, or done with deceit and intent to defraud.”
(Citations, quotation marks, brackets, and ellipses omitted)). We are bound by prior
decisions of this Court. See, e.g., In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d
30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue,
albeit in a different case, a subsequent panel of the same court is bound by that
precedent, unless it has been overturned by a higher court.”).
The indictments here properly alleged all necessary elements of felonious
obstruction of justice. We hold that the trial court properly denied defendant’s motion
to dismiss the charges of felony obstruction of justice and felony attempted
obstruction of justice.
Conclusion
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Opinion of the Court
We find no error with the trial court’s judgment.
NO ERROR.
Judges HUNTER and DAVIS concur.
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