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Russell v. Wofford

Court of Appeals of North Carolina

June 19, 2018

VERONICA RUSSELL, Plaintiff,
v.
DONALD WOFFORD, Defendant.

          Heard in the Court of Appeals 7 March 2018.

          Appeal by defendant from order entered 2 June 2017 by Judge Jeffrey E. Noecker in District Court, New Hanover County, No. 17-CVD-2018

          No brief filed on behalf of plaintiff.

          Sherman Law, P.C., by Scott G. Sherman, for defendant-appellant.

          STROUD, JUDGE.

         Defendant appeals no-contact order under North Carolina General Statute Chapter 50C which ordered him to surrender his firearms. Because the trial court had no authority under North Carolina General Statute Chapter 50C to order defendant not to possess or purchase any firearms, to surrender his firearms, or to revoke his concealed carry permit, we reverse and remand the portion of the order with these provisions. We affirm the remaining portions of the order.

         I. Background

         On or about 23 May 2017, plaintiff filed COMPLAINT FOR NO-CONTACT ORDER FOR STALKING OR NONCONSENSUAL SEXUAL CONDUCT on form AOC-CV-520, Rev. 8/14 against defendant under North Carolina General Statute § 50C-2. Plaintiff alleged defendant grabbed her breasts without her consent, came to her house "making false accusations" and refused to leave, and had his erectile dysfunction medication delivered to her home. Plaintiff marked boxes on the form requesting an ex parte temporary order and a permanent no-contact order.[1] Plaintiff also marked all of the boxes 4 through 9 on the form which request that defendant be ordered not to visit her or interfere with her in various ways and to stay away from her children's schools. Plaintiff made no request in the blank areas under box 10 entitled "Other: (specify)[.]" Plaintiff also made no allegations regarding firearms or any threat of physical violence.

         The trial court entered an ex parte TEMPORARY NO-CONTACT ORDER FOR STALKING OR NONCONSENSUAL SEXUAL CONDUCT, form AOC-CV-523, rev. 10/15, granting the relief as plaintiff requested and setting a hearing on the permanent no-contact order on 2 June 2017. On 2 June 2017, the trial court held the hearing on the permanent no-contact order; plaintiff and defendant were both present and defendant was represented by counsel. Plaintiff did not mention guns or make any request related to guns during her testimony. Defendant mentioned during his testimony he was a former FBI agent, retired police officer, and a veteran; he owned a firearm, and was "authorized to be armed in fifty states twenty-four seven." The trial court entered a NO-CONTACT ORDER FOR STALKING OR NONCONSENSUAL SEXUAL CONDUCT on form AOC-CV-524, Rev. 4/17 under North Carolina General Statute § 50C-7. The order included findings of fact regarding nonconsensual sexual conduct by defendant and concluded that defendant had "committed acts of unlawful conduct against the plaintiff."

         In the decree portion of the order, the trial court checked boxes 1 through 6, ordering defendant not to commit various acts such as visiting or stalking the plaintiff. The trial court also checked box 7, entitled "Other: (specify)" and made a handwritten notation ordering:

Defendant shall surrender to the NH Sheriff's office any and all firearms that he owns, to be held by NH Sheriff for the duration of this order. Defendant's concealed carry permit is revoked for the period of this order. Defendant is prevented from purchasing possessing any firearm for the term of this order.

         Defendant filed a timely notice of appeal from the order.

         II. Surrender of Firearms

         Defendant first contends that the trial court exceeded its authority as granted in North Carolina General Statute § 50C-7 by ordering him to surrender his firearms, not to purchase or possess any firearms, and revoking his concealed carry permit. The order was entered under North Carolina General Statute, Chapter 50C, and presents a question of statutory interpretation. "Questions of statutory interpretation are questions of law, which are reviewed de novo by an ...


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