in the Court of Appeals 27 September 2017.
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, No. 15 CRS 4737, 15 CRS 347, 15
CRS 200503, 15 CRS 5831-32
Attorney General Joshua H. Stein, by Assistant Attorney
General Kimberly N. Callahan, for the State.
Smith & Norris, P.A., by Kirby H. Smith, III, for
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.
State's evidence at trial showed these facts. On 26
December 2014, defendant was in a romantic relationship and
living with Nancy 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 female and taken to the Wake County
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
domestic violence hold. 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."
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
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."
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
CONDITIONS OF RELEASE MODIFICATIONS SUPPLEMENTAL ORDERS FOR
COMMITMENT DEFENDANT RECEIVED BY DETENTION FACILITY DEFENDANT
RELEASED FOR COURT APPEARANCE
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
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
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 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.
January 2015, the assault on a female charge in File No. 14
CR 229965 was apparently dismissed, so Order 1 was no longer
in effect. 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
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.
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.
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.
Motion to Dismiss Felony Stalking While Court Order in Effect
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 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.
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 ...