{ "id": 11241843, "name": "STATE OF NORTH CAROLINA v. RAYMOND FREDRICK GILLEY, Defendant", "name_abbreviation": "State v. Gilley", "decision_date": "1999-11-16", "docket_number": "No. COA98-1124", "first_page": "519", "last_page": "531", "citations": [ { "type": "official", "cite": "135 N.C. App. 519" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "504 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "106" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 616", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469402 ], "year": 1998, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0616-01" ] }, { "cite": "436 S.E.2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "895" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523444 ], "year": 1993, "pin_cites": [ { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0651-01" ] }, { "cite": "513 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1999, "pin_cites": [ { "page": "199, 213-14" }, { "page": "61, 70" }, { "page": "70" } ], "opinion_index": 0 }, { "cite": "350 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132086 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0193-01" ] }, { "cite": "329 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "373", "parenthetical": "\"criminal contempts are crimes, and accordingly, the accused is entitled to the benefits of all constitutional safeguards\"" } ], "opinion_index": 0 }, { "cite": "313 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720906 ], "year": 1985, "pin_cites": [ { "page": "435", "parenthetical": "\"criminal contempts are crimes, and accordingly, the accused is entitled to the benefits of all constitutional safeguards\"" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0432-01" ] }, { "cite": "291 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "860-61" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 416", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524700 ], "year": 1982, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0416-01" ] }, { "cite": "241 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "705" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550488 ], "year": 1978, "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0547-01" ] }, { "cite": "130 L. Ed. 2d 73", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "513 U.S. 842", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1332160, 1330498, 1330723, 1330758, 1334407, 1335271, 1330633, 1335567, 1334991, 1335473, 1330903, 1335161, 1331994, 1334590, 1335871 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/513/0842-04", "/us/513/0842-13", "/us/513/0842-03", "/us/513/0842-01", "/us/513/0842-14", "/us/513/0842-08", "/us/513/0842-07", "/us/513/0842-02", "/us/513/0842-09", "/us/513/0842-10", "/us/513/0842-11", "/us/513/0842-12", "/us/513/0842-05", "/us/513/0842-15", "/us/513/0842-06" ] }, { "cite": "868 P.2d 379", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10352231 ], "year": 1994, "pin_cites": [ { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/p2d/868/0379-01" ] }, { "cite": "902 P.2d 389", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10340933 ], "year": 1994, "pin_cites": [ { "page": "390-91" } ], "opinion_index": 0, "case_paths": [ "/p2d/902/0389-01" ] }, { "cite": "644 So.2d 342", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7447188 ], "year": 1994, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/so2d/644/0342-01" ] }, { "cite": "938 P.2d 204", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1997, "opinion_index": 0 }, { "cite": "940 P.2d 185", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 142262 ], "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0337-01" ] }, { "cite": "467 U.S. 493", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203132 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "499", "parenthetical": "protection against cumulative punishments \"designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature\"" }, { "page": "433", "parenthetical": "protection against cumulative punishments \"designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature\"" } ], "opinion_index": 0, "case_paths": [ "/us/467/0493-01" ] }, { "cite": "355 N.W.2d 592", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1984, "pin_cites": [ { "page": "602-03", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "679 A.2d 217", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 11320187, 463574 ], "weight": 9, "year": 1996, "pin_cites": [ { "page": "221" }, { "page": "220-22" }, { "page": "222" }, { "page": "221" }, { "page": "221" }, { "page": "221-22" }, { "page": "221-22" }, { "page": "221-22" } ], "opinion_index": 0, "case_paths": [ "/a2d/679/0217-01", "/pa/544/0578-01" ] }, { "cite": "495 U.S. 508", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 634223 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "510" }, { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/us/495/0508-01" ] }, { "cite": "284 U.S. 299", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5719289 ], "weight": 4, "year": 1932, "pin_cites": [ { "page": "304" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/us/284/0299-01" ] }, { "cite": "858 F.2d 945", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10532350 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/f2d/858/0945-01" ] }, { "cite": "310 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "310" }, { "page": "310" } ], "opinion_index": 0 }, { "cite": "310 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2394579 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "74" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0061-01" ] }, { "cite": "395 U.S. 784", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771730 ], "weight": 4, "year": 1969, "pin_cites": [ { "page": "794" }, { "page": "716" }, { "page": "796" } ], "opinion_index": 0, "case_paths": [ "/us/395/0784-01" ] }, { "cite": "287 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "quoting Benton v. Maryland, 395 U.S. 784, 794, 23 L. Ed. 2d 707, 716 (1969)" } ], "opinion_index": 0 }, { "cite": "305 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567315 ], "year": 1982, "pin_cites": [ { "parenthetical": "quoting Benton v. Maryland, 395 U.S. 784, 794, 23 L. Ed. 2d 707, 716 (1969)" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0225-01" ] }, { "cite": "278 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "279" }, { "page": "279", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169974 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "55" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0048-01" ] }, { "cite": "125 L. Ed. 2d 556", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 27, "year": 1993, "pin_cites": [ { "page": "568", "parenthetical": "constitutional protection of the Double Jeopardy Clause applies to nonsummary criminal contempt prosecutions" }, { "page": "568" }, { "page": "573" }, { "page": "697" }, { "page": "568" }, { "page": "579" }, { "page": "691" }, { "page": "565" }, { "page": "698-700" }, { "page": "569-70" }, { "page": "700" }, { "page": "570" }, { "page": "700" }, { "page": "570" }, { "page": "580" }, { "parenthetical": "emphasis in original" }, { "page": "581" }, { "page": "579" }, { "page": "570" }, { "page": "587" }, { "page": "586" }, { "page": "586", "parenthetical": "\"interests of the defendant are of paramount concern\"" } ], "opinion_index": 0 }, { "cite": "509 U.S. 688", "category": "reporters:federal", "reporter": "U.S.", "weight": 9, "year": 1993, "pin_cites": [ { "page": "696", "parenthetical": "constitutional protection of the Double Jeopardy Clause applies to nonsummary criminal contempt prosecutions" }, { "page": "696" }, { "page": "704" }, { "page": "714" }, { "page": "699" }, { "page": "724" }, { "page": "724" } ], "opinion_index": 0 }, { "cite": "391 U.S. 194", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767745 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "201" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/us/391/0194-01" ] }, { "cite": "490 U.S. 794", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605800 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "802" }, { "page": "874-75" } ], "opinion_index": 0, "case_paths": [ "/us/490/0794-01" ] }, { "cite": "395 U.S. 711", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1772134 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "717" }, { "page": "664-65" } ], "opinion_index": 0, "case_paths": [ "/us/395/0711-01" ] }, { "cite": "340 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1986, "pin_cites": [ { "page": "707", "parenthetical": "citations omitted" }, { "page": "707" }, { "page": "707" }, { "page": "709" }, { "page": "707" }, { "page": "707" }, { "page": "707" }, { "page": "707" }, { "page": "707" } ], "opinion_index": 0 }, { "cite": "315 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717320 ], "weight": 7, "year": 1986, "pin_cites": [ { "page": "451", "parenthetical": "citations omitted" }, { "page": "451" }, { "page": "452" }, { "page": "452" }, { "page": "452" }, { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0444-01" ] }, { "cite": "137 L. Ed. 2d 312", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "520 U.S. 1106", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11656134, 11656039, 11656007, 11655944, 11656170, 11655978, 11655915, 11656205, 11656110, 11655993, 11656090, 11655901, 11656063 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/520/1106-11", "/us/520/1106-07", "/us/520/1106-06", "/us/520/1106-03", "/us/520/1106-12", "/us/520/1106-04", "/us/520/1106-02", "/us/520/1106-13", "/us/520/1106-10", "/us/520/1106-05", "/us/520/1106-09", "/us/520/1106-01", "/us/520/1106-08" ] }, { "cite": "475 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "218" } ], "opinion_index": 0 }, { "cite": "344 NC. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867711 ], "year": 1996, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0242-01" ] } ], "analysis": { "cardinality": 1129, "char_count": 28059, "ocr_confidence": 0.761, "pagerank": { "raw": 3.2319728406835374e-07, "percentile": 0.8677583133225142 }, "sha256": "85083c639db130d28ae1f4e8b8c2ba7e5dd64ec44e4cb89e8c7ec243c0766cbc", "simhash": "1:71c24562210b03dc", "word_count": 4460 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RAYMOND FREDRICK GILLEY, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant appeals judgment entered upon convictions by a jury of first degree kidnapping, domestic criminal trespass, communicating threats, misdemeanor breaking and entering, and assault on a female. We vacate the latter conviction.\nThe State\u2019s evidence at trial tended to show the following: Defendant and Vicky Gilley (Mrs. Gilley) were married in March 1989 and separated 5 February 1995. Mrs. Gilley continued to reside in the marital residence with the couple\u2019s daughter and Mrs. Gilley\u2019s twin daughters from a previous marriage. After two violent incidents between defendant and Mrs. Gilley, one occurring at the former marital residence and the other at the home of Mrs. Gilley\u2019s parents, a domestic violence protective order (the order), effective until 16 March 1996, was issued 16 March 1995 and served upon defendant that same date.\nNotwithstanding, defendant entered the marital residence on 7 January 1996 armed with a knife. Following a physical altercation with Mrs. Gilley, defendant forced her into his truck, but she jumped out and escaped while he was operating the vehicle.\nOn 23 January 1996, Mrs. Gilley filed a Motion for Order to Show Cause. Plaintiff alleged defendant \u201ckicked the [house] door in,\u201d \u201cphysically abused\u201d her, \u201cripped off [her] clothes,\u201d \u201ckidnapped [her] from the residence,\u201d and \u201cabducted the [couple\u2019s] daughter \u2014 Erica.\u201d At a hearing conducted in Guilford County District Court, defendant admitted he went to Mrs. Gilley\u2019s residence on 7 January 1996, kicked in the door, \u201cslapp[ed] Vicky around,\u201d ripped off her clothes, and took her outside to his truck, and that he knew the order was in effect when he committed the foregoing acts. Defendant thereupon was ordered committed to the Guilford County jail for 30 days based upon the court\u2019s determination he had \u201cwillfully failed to comply with the Domestic Violence Protective Order and [wa]s in Criminal Contempt.\u201d\nOn 18 March 1996, defendant was indicted upon charges of first degree burglary, first degree kidnapping, domestic criminal trespass, communicating threats, and assault on a female in connection with the 7 January 1996 incident. On 8 August 1996, defendant filed a \u201cPlea of Former Jeopardy,\u201d moving for dismissal (defendant\u2019s motion) of all criminal charges except that of communicating threats based upon the principle of double jeopardy. The trial court rejected defendant\u2019s motion and defendant was subsequently convicted by a jury at trial on all counts save that of burglary. In the latter instance, he was found guilty of non-felonious breaking or entering. The offenses were consolidated for judgment and defendant was ordered \u201cimprisoned for a minimum term of 145 months [and] for a maximum term of 183 months.\u201d Defendant timely appealed.\nOn appeal, defendant contends the trial court erred in failing to grant his motion to dismiss. We agree in limited part.\nIn defendant\u2019s motion, he alleged prosecution of the criminal charges would violate the double jeopardy prohibitions contained in \u201cthe North Carolina Constitution and the Constitution of the United States.\u201d See U.S. Const, amend. Y and N.C. Const, art. I, \u00a7 19. Neither defendant\u2019s assignment of error nor the arguments in his appellate brief address provisions of our North Carolina Constitution. Accordingly, any argument based thereon is not properly before us. See N.C.R. App. P. 10(a) (scope of appellate review \u201cconfined to . . . consideration of those assignments of error set out in the record on appeal\u201d) and N.C.R. App. P. 28(b)(5) (\u201c[assignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned\u201d). Nonetheless, we note that\n[b]oth the Fifth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution protect against multiple punishments for the same offense.\nState v. Elliott, 344 NC. 242, 277, 475 S.E.2d 202, 218 (1996), cert. denied, 520 U.S. 1106, 137 L. Ed. 2d 312 (1997).\nIn pertinent part, the Fifth Amendment to the United States Constitution (the Double Jeopardy Clause) provides that no person shall \u201cbe subject for the same offence to be twice put in jeopardy of life or limb.\u201d U.S. Const, amend. V. The Double Jeopardy Clause protects against\n(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and . (3) multiple punishments for the same offense.\nState v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986) (citations omitted); North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 664-65 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 802, 104 L. Ed. 2d 865, 874-75 (1989). Criminal contempt enforced through nonsummary proceedings, as in the instant case, is \u201ca crime in the ordinary sense,\u201d Bloom v. Illinois, 391 U.S. 194, 201, 20 L. Ed. 2d 522, 528 (1968), and therefore the prohibition against \u201ca second prosecution for the same offense after conviction,\u201d Gardner, 315 N.C. at 451, 340 S.E.2d at 707, is implicated herein; see United States v. Dixon, 509 U.S. 688, 696, 125 L. Ed. 2d 556, 568 (1993) (constitutional protection of the Double Jeopardy Clause applies to nonsummary criminal contempt prosecutions).\nDefendant\u2019s argument presents an issue of first impression in North Carolina, i.e., the extent to which the Double Jeopardy Clause relates to subsequent prosecution for a substantive criminal offense following an adjudication of criminal contempt based upon violation of a court order forbidding such criminal act. As this Court has noted, \u201c \u2018the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage,\u2019 \u201d and is applicable to the States through the Fourteenth Amendment. State v. Perry, 52 N.C. App. 48, 55, 278 S.E.2d 273, 279 (1981), modified in part on other grounds, 305 N.C. 225, 287 S.E.2d 810 (1982) (quoting Benton v. Maryland, 395 U.S. 784, 794, 23 L. Ed. 2d 707, 716 (1969)). Accordingly, the validity of defendant\u2019s convictions following his being held in contempt \u201c \u2018must be judged . . . under [the United States Supreme] Court\u2019s interpretations of the Fifth Amendment double jeopardy provision.\u2019 \u201d Id. (quoting Benton, 395 U.S. at 796, 23 L. Ed. 2d at 717). See State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984), overruled on other grounds, McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988) (\u201c[s]tate courts are no less obligated to protect and no less capable of protecting a defendant\u2019s federal constitutional rights than are federal courts ... [and] [i]n performing this obligation a state court should exercise and apply its own independent judgment, treating . . . decisions of the United States Supreme Court as binding\u201d).\nThe most recent \u201cbinding,\u201d id, decision of the United States Supreme Court (the Supreme Court) pertinent to our inquiry herein is that of United States v. Dixon, 509 U.S. 688, 125 L. Ed. 2d 556 (1993), in actuality two cases joined for appeal which resulted in a multiplicity of opinions. The majority holdings were constructed by interweaving the Supreme Court\u2019s five separate opinions.\nIn Dixon, a majority of the Supreme Court held that the sole test applied to determine whether a successive prosecution \u2014 based upon conduct which had resulted in an adjudication of contempt \u2014 is barred by the Double Jeopardy Clause was the \u201csame-elements\u201d test set out in Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306 (1932):\nThe same-elements test, sometimes referred to as the \u201cBlockburger\u201d test, inquires whether each offense contains an element not contained in the other; if not, they are the \u201csame offence\u201d and double jeopardy bars additional punishment and successive prosecution.\nDixon, 509 U.S. at 696, 125 L. Ed. 2d at 568.\nHowever, the Supreme Court had written in Blockburger that\n[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.\nBlockburger, 284 U.S. at 304, 76 L. Ed. at 309. A majority of the justices in Dixon refined Blockburger by overruling Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548 (1990), to the extent that decision required, in addition to the \u201csame-elements\u201d test, subsequent prosecution to satisfy a \u201csame-conduct\u201d test, Dixon, 509 U.S. at 704, 125 L. Ed. 2d at 573. According to Dixon, the \u201csame-conduct\u201d test prohibited a second prosecution if,\nto establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.\nId. at 697, 125 L. Ed. 2d at 568 (quoting Grady, 495 U.S. at 510, 109 L. Ed. 2d at 557).\nAlthough a majority of the Supreme Court in Dixon agreed the Blockburger test was equivalent to the \u201csame-elements\u201d test, differing applications thereof were proffered in the Court\u2019s multiple opinions. In rendering the opinion of the Supreme Court on most issues, Justice Scalia emphasized examination of the content and language of the previous court order, while Chief Justice Rehnquist, in an opinion concurring in part and dissenting in part, focused upon \u201cthe elements of contempt of court in the ordinary sense,\u201d Dixon, 509 U.S. at 714, 125 L. Ed. 2d at 579, as compared with the elements of the substantive crime.\nJustice Scalia concluded that defendant Dixon\u2019s prior \u201cconviction\u201d of criminal contempt for having violated a court order prohibiting \u201ccommission] [of] any criminal offense,\u201d id. at 691, 125 L. Ed. 2d at 565, which \u201cconviction\u201d was based upon Dixon\u2019s possession of drugs with the intent to distribute, barred his subsequent prosecution on a charge of possession of cocaine with intent to distribute, id. at 698-700, 125 L. Ed. 2d at 569-70. Justice Scalia reasoned that\n[bjecause Dixon\u2019s drug offense did not include any element not contained in his previous contempt offense, his subsequent prosecution violate [d] the Double Jeopardy Clause.\nId. at 700, 125 L. Ed. 2d at 570.\nAs to defendant Foster, Justice Scalia determined Foster\u2019s subsequent prosecution on an indictment charging assault,\nbased on the same event that was the subject of his prior contempt conviction for violating the provision of the [civil protective order] forbidding him to commit simple assault,\nid., under the identical statute the trial court construed to govern his indictment, id. at 700 n.3, 125 L. Ed. 2d at 570 n.3, \u201cfail[ed] the Blockburger test, and [wa]s barred,\u201d id. at 700, 125 L. Ed. 2d at 570.\nOn the other hand, Chief Justice Rehnquist noted the elements of contempt of court are 1) an extant court order made known to the defendant, and 2) willful violation thereof by the defendant. Id. at 716, 125 L. Ed. 2d at 580. He then asserted,\nit is clear that the elements of the governing contempt provision are entirely different from the elements of the substantive crimes,\nid. (emphasis in original), and that\n[n] either of th[e contempt] elements is necessarily satisfied by proof that a defendant has committed the substantive offenses of assault or drug distribution. Likewise, no element of either of those substantive offenses is necessarily satisfied by proof that a defendant has been found guilty of contempt of court,\nid. at 716, 125 L. Ed. 2d at 581. According to Chief Justice Rehnquist, therefore, \u201cnone of the criminal prosecutions in this case were barred under Blockburger. \u201d Id. at 713, 125 L. Ed. 2d at 579.\nIn selecting which approach to apply herein, we are advertent to the State\u2019s assertion of a distinction between the interests served by criminal contempt proceedings and those served through prosecution for substantive criminal offenses. According to the State, a contempt proceeding\npreserve^] the power and .. . vindicate^] the dignity of the court and . . . punish[es] for disobedience of its processes or orders,\nwhile a criminal prosecution is \u201cdesigned to seek conviction and punishment for violations of the criminal law.\u201d\nThis stance, however, was disapproved by a majority of the Supreme Court in Dixon. Commonwealth v. Yerby, 679 A.2d 217, 221 (Pa. 1996). Justice Scalia wrote that\nthe distinction is of no moment for purposes of the Double Jeopardy Clause, the text of which looks to whether the offenses are the same, not the interests that the offenses violate.\nDixon, 509 U.S. at 699, 125 L. Ed. 2d at 570. Further, according to Justices White, Stevens and Souter, concurring in part and dissenting in part in Dixon, although two interests may be implicated, the circumstance that alleged criminal conduct constitutes a violation of a court order does not \u201crender the prosecution any less an exercise of the sovereign power of the United States.\u201d Id. at 726, 125 L. Ed. 2d at 587.\nThe State also contends legislative intent to punish contempt violations and substantive offenses separately must be considered and should be determinative of the double jeopardy issue if that intent is unambiguous. The State relies upon State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986), for this proposition; however, such reliance is misplaced.\nGardner involved \u201cmultiple punishments for the same offense,\u201d id. at 451, 340 S.E.2d at 707, and our Supreme Court held that clear legislative intent to punish cumulatively must be respected, \u201cregardless of the outcome of the application of the Blockburger test,\u201d id. at 455, 340 S.E.2d at 709. Significantly, however, the distinction between cases involving multiple punishments in a single prosecution and those involving successive prosecutions, as in the instant case, was articulated in Gardner as follows:\n[s]uccessive-prosecution cases involve the core values of the Double Jeopardy Clause, the common-law concepts of autrefois acquit and convict. Where successive prosecutions are involved, the Double Jeopardy Clause protects the individual\u2019s interest in not having to twice \u201crun the gauntlet,\u201d in not being subjected to \u201cembarrassment, expense and ordeal,\u201d and in not being compelled \u201cto live in a continuing state of anxiety and insecurity,\u201d with enhancement of the \u201cpossibility that even though innocent he may be found guilty.\u201d\nDifferent interests are involved when the issue is purely one of multiple punishments, without the complications of a successive prosecution. The right to be free from vexatious proceedings simply is not present. The only interest of the defendant is in not having more punishment imposed than that intended by the legislature. The intent of the Legislature, therefore, is determinative.\nId. at 452, 340 S.E.2d at 707 (quoting People v. Robideau, 355 N.W.2d 592, 602-03 (Mich. 1984) (citations omitted)); see also Ohio v. Johnson, 467 U.S. 493, 499, 81 L. Ed. 2d 425, 433 (1984) (protection against cumulative punishments \u201cdesigned to ensure that the sentencing discretion of courts is confined to the limits established by the legislature\u201d). Therefore, where successive prosecution is initiated following a previous conviction, \u201cthe core values of the Double Jeopardy Clause,\u201d Gardner, 315 N.C. at 452, 340 S.E.2d at 707, control in determining whether the offenses are the same, see Dixon, 509 U.S. at 724, 125 L. Ed. 2d at 586. However, an analysis according deference to expressed legislative intent is applicable only to cases involving multiple punishments. See Gardner, 315 N.C. at 452, 340 S.E.2d at 707.\nFurther, comparison of the literal elements of contempt with the elements of the substantive criminal offense as propounded by Chief Justice Rehnquist would nearly always result in the conclusion that neither of the general elements of contempt was necessary to prove the substantive criminal offense, and that the latter contained additional elements beyond those required for contempt. See Yerby, 679 A.2d at 220-22 (approach of Chief Justice Rehnquist, \u201cwhile purporting to embrace the concept that criminal contempt convictions implicate double jeopardy protections, rings hollow\u201d and \u201crenders double jeopardy protections illusory at best\u201d; \u201capproach that scrutinizes anything other than the actual offense or offenses prosecuted in the contempt proceeding, undermines th[e] very constitutional guarantee being questioned\u201d).\nIn short, decisions of the Supreme Court are \u201cbinding\u201d upon us in the area of constitutional interpretation, McDowell, 310 N.C. at 74, 310 S.E.2d at 310, and we therefore adopt the approach enunciated by Justice Scalia in Dixon for a majority of the Supreme Court, see Perry, 52 N.C. App. at 55, 278 S.E.2d at 279 (citation omitted) (\u201cvalidity of defendant\u2019s dual convictions . . . must be judged\u201d by our state courts according to U.S. Supreme Court\u2019s \u201cinterpretations of the Fifth Amendment double jeopardy provision\u201d). Thus, under the circumstances sub judice, rather than comparison of the general literal elements of contempt with elements of the subsequent substantive criminal offense, the test involves comparison of\nthe elements of the offense actually deemed to have been violated in th[e] contempt proceeding against the elements of the substantive criminal offense(s).\nYerby, 679 A.2d at 222.\nIn other words, we must look to the specific offenses at issue in the contempt proceeding and compare the elements of those offenses with the elements of the subsequently charged criminal offenses .... The focus ... is on the offense(s) for which the defendant was actually held in contempt.\nId. at 221. Such an approach follows the position of at least five justices in Dixon, see id. at 221 n.10, and best ensures protection of \u201cthe core values of the Double Jeopardy Clause,\u201d Gardner, 315 N.C. at 452, 340 S.E.2d at 707; see also State v. Gonzales, 940 P.2d 185, 187 (N.M. Ct. App.), cert. denied, 938 P.2d 204 (N.M. 1997); Yerby, 679 A.2d at 221; State v. Miranda, 644 So.2d 342, 344 (Fla. Dist. Ct. App. 1994); People v. Stenson, 902 P.2d 389, 390-91 (Colo. Ct. App. 1994); People v. Allen, 868 P.2d 379, 381 (Colo. 1994), cert. denied, 513 U.S. 842, 130 L. Ed. 2d 73 (1994).\nIn the instant case, defendant was convicted of assault on a female, first degree kidnapping, non-felonious breaking and entering, domestic criminal trespass, and communicating threats. The indictments were handed down after defendant had served a thirty-day prison sentence pursuant to an adjudication of criminal contempt based upon his violation of the protective order dealing with the same conduct. Defendant has conceded that his plea of former jeopardy was inapplicable to the charge of communicating threats. Our review is therefore limited to the remaining four offenses.\nThe protective order decreed, inter alia:\n1. The defendant shall not assault, threaten, abuse, follow, harass, or in any way interfere with [Mrs. Gilley];\n2. The defendant shall not assault, threaten, abuse, follow, harass, or in any way interfere with any of the minor children who are currently in the physical custody of [Mrs. Gilley];\n4. The defendant shall stay away from the parties\u2019 residence^]\nUnder N.C.G.S. \u00a7 14-33(b)(2) (1993), the essential elements of assault on a female are (1) assault (2) upon a female person by a male person. State v. Craig, 35 N.C. App. 547, 549, 241 S.E.2d 704, 705 (1978). Assault is defined as\nan overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.\nState v. Jeffries, 57 N.C. App. 416, 418, 291 S.E.2d 859, 860-61 (1982).\nThe record before us contains no transcript of the contempt proceeding and the 28 February 1996 contempt order recites only that \u201c[t]he defendant willfully failed to comply with the Domestic Violence Protective Order and is in Criminal Contempt.\u201d It is therefore unclear as to whether defendant was adjudicated in contempt for violation of a single prohibition in the order or for several or all. Moreover, the protective order specifically referenced none of the substantive elements of assault on a female, but rather simply directed in general terms that defendant \u201cnot assault, threaten, abuse ... or in any way interfere\u201d with Mrs. Gilley.\nNonetheless, in our review of defendant\u2019s subsequent conviction for assault on a female, any ambiguity surrounding the phrase \u201cassault\u201d in the order and the terseness of the contempt judgment must be construed in favor of defendant. See Dixon, 509 U.S. at 724, 125 L. Ed. 2d at 586 (\u201cinterests of the defendant are of paramount concern\u201d), and O\u2019Briant v. O\u2019Briant, 313 N.C. 432, 435, 329 S.E.2d 370, 373 (1985) (\u201ccriminal contempts are crimes, and accordingly, the accused is entitled to the benefits of all constitutional safeguards\u201d), and see Gardner, 315 N.C. at 452, 340 S.E.2d at 707. We therefore con-elude the prohibition in the protective order that defendant, a male, not assault Mrs. Gilley, a female, met the legal elements necessary for assault on a female under G.S. \u00a7 14-33(b)(2), and that defendant\u2019s subsequent prosecution on such charge was barred by the Double Jeopardy Clause. Accordingly, under the circumstances of this case, defendant\u2019s conviction for assault on a female must be vacated.\nPrior to discussing defendant\u2019s remaining convictions, we note that although the Supreme Court in Dixon held further prosecution of defendant Foster on the charge of simple assault was barred by the Double Jeopardy Clause, the Court found no error regarding his subsequent conviction of assault with intent to kill. See Dixon, 509 U.S. at 701-02 & n.7, 125 L. Ed. 2d at 571 & n.7. Query then as to the result under the facts sub judice had defendant subsequently been convicted of assault with a deadly weapon as opposed to assault on a female.\nIn any event, as to the charges of kidnapping, non-felonious breaking or entering, and domestic criminal trespass, we hold there was no error in regards to the convictions thereon. For example, the order expressly prohibited defendant from \u201cinterfering]\u201d with and \u201cfollowing]\u201d Mrs. Gilley. Such language does not encompass the elements required under N.C.G.S. \u00a7 14-39 (1993) for first degree kidnapping:\na) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person ... shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:\n(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person.\nb) If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree. . . .\nG.S. \u00a7 14-39(a)&(b).\nComparison of the foregoing with the prohibitions of the protective order reveals several elements contained within the statutory language, including confinement and a purpose to do serious bodily harm or to terrorize, not set out in the protective order. Defendant\u2019s prosecution for the crime of kidnapping thus was not barred by the constitutional prohibition against double jeopardy. See Yerby, 679 A.2d at 221-22.\nThe statutory offense of non-felonious breaking or entering requires a wrongful breaking or entrance into a building. See N.C.G.S. \u00a7 14-54(b) (1993). However, the protective order required simply that defendant \u201cstay away from the parties\u2019 residence,\u201d and did not include language pertaining to the breaking or entering of the residence. Again, defendant\u2019s conviction for breaking or entering was not barred by the Double Jeopardy Clause. See Yerby, 679 A.2d at 221-22.\nSimilarly, as to the offense of domestic criminal trespass, N.C.G.S. \u00a7 14-134.3 (1993), the order directed defendant to \u201cstay away\u201d from the marital residence, while the statute forbids a person from \u201centering] after being forbidden to do so or remain[ing] . . . upon the premises occupied by a present or former spouse.\u201d G.S. \u00a7 14-134.3. The Double Jeopardy Clause thus did not prohibit defendant\u2019s prosecution on the charge of domestic criminal trespass. See Yerby, 679 A.2d at 221-22.\nIn sum, the Double Jeopardy Clause did not constitute a bar to defendant\u2019s subsequent prosecution on charges of kidnapping, non-felonious breaking or entering, and domestic criminal trespass; however, defendant\u2019s conviction of assault on a female must be vacated. Further, a recent decision of our North Carolina Supreme Court requires that the non-vacated convictions be remanded for re-sentencing.\nIn State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999), the defendant\u2019s conviction of solicitation to commit murder was vacated, but a conspiracy to commit murder conviction which the trial court had consolidated for sentencing with the solicitation charge was remanded, id. at 199, 213-14, 513 S.E.2d at 61, 70. The Court noted it could not \u201cassume that the trial court\u2019s consideration of two offenses, as opposed to one, had no affect [sic] on the sentence imposed.\u201d Id. at 213, 513 S.E.2d at 70. While the case subjudice may be one \u201cwhere, on remand, the trial judge will . . . reach the same result,\u201d State v. Futrell, 112 N.C. App. 651, 672, 436 S.E.2d 884, 895 (1993), absent consideration of the misdemeanor conviction we have vacated, this Court is bound by rulings of the North Carolina Supreme Court, Heatherly v. Industrial Health Council, 130 N.C. App. 616, 621, 504 S.E.2d 102, 106 (1998).\nNo. 96 CRS 23155, assault on a female, vacated. Nos. 96 CRS 23151-23154, kidnapping, non-felonious breaking or entering, and domestic criminal trespass, no error; remanded for re-sentencing.\nJudges TIMMONS-GOODSON and HUNTER concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Teresa L. Harris, for the State.", "Clifford, Glendenin, O\u2019Hale and Jones, L.L.P., by Walter L. Jones, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RAYMOND FREDRICK GILLEY, Defendant\nNo. COA98-1124\n(Filed 16 November 1999)\n1. Constitutional Law\u2014 double jeopardy \u2014 violation of domestic violence protective order \u2014 criminal contempt\u2014 convictions for substantive offenses\nIn a case where defendant was prosecuted for the substantive criminal offenses of first-degree kidnapping, domestic criminal trespass, communicating threats, assault on a female, and first-degree burglary following an adjudication of criminal contempt based upon violation of a domestic violence protective order, defendant\u2019s conviction of assault on a female violated defendant\u2019s Fifth Amendment double jeopardy rights because a comparison of the offense actually deemed to have been violated in the contempt proceeding versus the elements of the substantive criminal offenses reveals the prohibition in the protective order that defendant not assault his estranged wife met the same legal elements necessary for assault on a female under N.C.G.S. \u00a7 14-33(b)(2). However, defendant\u2019s convictions of first-degree kidnapping, domestic criminal trespass, communicating threats, and nonfelonious breaking or entering did not violate defendant\u2019s double jeopardy rights because these crimes contained elements not present in the domestic violence protective order.\n2. Sentencing\u2014 non-vacated convictions \u2014 remand for resentencing\nIn a case where the double jeopardy clause constituted a bar to defendant\u2019s conviction for assault on a female, but not for the other convictions for first-degree kidnapping, domestic criminal trespass, communicating threats, and non-felonious breaking or entering, the non-vacated convictions must be remanded for resentencing because it cannot be assumed that the trial court will reach the same sentencing result absent consideration of the assault on a female conviction.\nAppeal by defendant from judgment entered 15 August 1996 by Judge Jerry Cash Martin in Guilford County Superior Court. Heard in the Court of Appeals 19 May 1999.\nAttorney General Michael F. Easley, by Assistant Attorney General Teresa L. Harris, for the State.\nClifford, Glendenin, O\u2019Hale and Jones, L.L.P., by Walter L. Jones, for defendant-appellant." }, "file_name": "0519-01", "first_page_order": 553, "last_page_order": 565 }