{
  "id": 8209269,
  "name": "STATE OF NORTH CAROLINA v. EDGAR SIMON",
  "name_abbreviation": "State v. Simon",
  "decision_date": "2007-08-07",
  "docket_number": "No. COA06-1483",
  "first_page": "247",
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    "judges": [
      "Judges McGEE and STEPHENS concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. EDGAR SIMON"
    ],
    "opinions": [
      {
        "text": "SMITH, Judge.\nEdgar Simon (defendant) appeals from judgment entered upon the trial court\u2019s order holding him in indirect criminal contempt of court. We affirm.\nThe pertinent facts may be summarized as follows: Defendant was previously involved in a civil action designated a special proceeding in Forsyth County, North Carolina, the details of which are not at issue in the present appeal. See N.C. Gen. Stat. \u00a7 1-3; and \u00a7 1A-1, Rule 2 (2005). On 11 May 2006 a hearing was held in the special proceeding before Forsyth County Superior Court Judge Ronald E. Spivey. During this hearing, Judge Spivey instructed defendant as follows:\nJUDGE SPIVEY: . . . [T]he Court will find that during the pen-dency of this action . .. the respondent has been a frequent caller to the judge\u2019s office. The staff reports to me, as I stepped out to prepare this judgment, that at times [he has made] as many as 20 phone calls a week in addition to letters, faxes, and personal visits to the judge\u2019s office.\nThe respondent has also been discovered to be in secure areas of the courthouse, behind courtroom 5A of criminal court where prisoners are transported and when asked to leave, he was grudgingly compliant and questioned the authority of our staff to ask him to leave a secured area.\nBased on these facts, the Court would direct that the respondent not call the judge\u2019s office about this case any further. . . . Any additional filings may be made with the clerk\u2019s office or whatever appropriate office and he should not fax or come to the judge\u2019s office to speak to any staff about this case.\nOn 20 June 2006 defendant faxed an \u201cAffidavit of Personal Bias\u201d in the special proceeding to Senior Resident Superior Court Judge of Forsyth County Judson D. Deramus, Jr., wherein he complained that Judge Spivey had \u201cstrongly admonish[ed him] to not call, send faxes or letters to court staff and to not visit the judges office of the courthouse.\u201d On 23 June 2006, defendant appeared before Emergency Superior Court Judge W. Douglas Albright, in the special proceeding, who reviewed defendant\u2019s letter to Judge Deramus, and reiterated Judge Spivey\u2019s instructions to defendant:\nJUDGE ALBRIGHT: . . . There\u2019s a file in here that Judge Spivey admonished you not to call or send faxes. . . . [H]e admonished you. That\u2019s the same way to say he ordered you\u2014\nMR. SIMON: He did.\nTHE COURT: \u2014not to call, not to send faxes, not to send letters to the court staff, and not to visit the judges\u2019 office. . . . [D]on\u2019t put yourself in a position where the Court\u2019s going to have to take action].]\nOn 26 June 2006 defendant went to the judges\u2019 office area on the fifth floor of the Forsyth County Courthouse, to hand-deliver an emergency motion for a temporary restraining order in the special proceeding to the trial court administrator. In order to do this, defendant entered the courthouse area set aside for the judges\u2019 chambers and separated from the rest of the courthouse by a door marked \u201cJudges Offices.\u201d On the same day, Judge William Z. Wood, Jr., of the Forsyth Superior Court issued a Show Cause Order in the case sub judice stating in pertinent part:\n. . . [T]he above named individual was ordered on June 23, 2006 by the Honorable Judge W. Douglas Albright, to stay away from the Forsyth County trial administrator\u2019s office. This office is located on the fifth floor of the Forsyth County Hall of Justice building in Winston-Salem, N.C. On June 26, 2006 the above named defendant did appear in the Forsyth County [trial] administrator\u2019s office. This appearance is in direct violation of Judge Albright\u2019s previous order.\nA hearing was conducted on the Show Cause Order before Judge C. Philip Ginn in Forsyth County Superior Court on 9 August 2006. On that date, Judge Ginn entered an order finding defendant in indirect criminal contempt of court. In a Judgment Suspending Sentence of even date, defendant received a suspended thirty day sentence and was placed on supervised probation. From this judgment and commitment, defendant appeals.\nStandard of Review\nDefendant appeals from judgment entered upon an order holding him in criminal contempt. A contempt hearing is a non-jury proceeding. \u201cThe standard of appellate review for a decision rendered in a non-jury trial is whether there is competent evidence to support the trial court\u2019s 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.\u201d Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (2001) (citations omitted). \u201cThe trial court\u2019s conclusions of law drawn from the findings of fact are reviewable de novo.\u201d Curran v. Barefoot, 183 N.C. App. 331, 335, 645 S.E.2d 187,-(2007) (citing Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980)).\nDefendant first argues that the trial court erred in finding him in criminal contempt of court, on the grounds that \u201c[n] either Judge Albright\u2019s June 23, 2006 oral directive for the defendant to comply with Judge Spivey\u2019s prior order nor Judge Spivey\u2019s May 11, 2006 order were ever reduced to writing, signed by the judge nor filed with the clerk[.]\u201d Defendant asserts that one cannot be held in criminal contempt of court unless he violates a formal written order. We disagree.\n\u201cAt the outset we note that contempt in this jurisdiction may be of two kinds, civil or criminalf.] . . . Criminal contempt is generally applied where the judgment is in punishment of an act already accomplished, tending to interfere with the administration of justice.\u201d O\u2019Briant v. O\u2019Briant, 313 N.C. 432, 434, 329 S.E.2d 370, 372 (1985) (citing Blue Jeans Corp. v. Clothing Workers, 275 N.C. 503, 508-09, 169 S.E.2d 867, 869 (1969)). \u201cAccordingly, \u2018criminal [contempt] proceedings are those brought to preserve the power and to vindicate the dignity of the court and to punish for disobedience of its processes or orders.\u2019 \u201d State v. Randell, 152 N.C. App. 469, 473, 567 S.E.2d 814, 817 (2002) (quoting State v. Reaves, 142 N.C. App. 629, 632-33, 544 S.E.2d 253, 256 (2001)).\nDirect criminal contempt is \u201ccommitted within the sight or hearing of a presiding judicial official[,]\u201d N.C. Gen. Stat. \u00a7 5A-13(a)(l) (2005), while indirect criminal contempt \u201carises from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice.\u201d Atassi v. Atassi, 122 N.C. App. 356, 361, 470 S.E.2d 59, 62 (1996). N.C. Gen. Stat. \u00a7 5A-13(b) (2005). Defendant herein was alleged to be in indirect criminal contempt of court, for visiting the office of the trial court administrator in violation of the trial court\u2019s directive to stay out of the judges\u2019 office area.\nUnder N.C. Gen. Stat. \u00a7 5A-ll(a)(3) (2005), criminal contempt includes \u201c[w]illful disobedience of, resistance to, or interference with a court\u2019s lawful process, order, directive, or instruction or its execution.\u201d The statute does not limit criminal contempt to violation of a formal written order that has been entered and filed with the clerk of court. This is consistent with the role of criminal contempt proceedings in protecting the authority and dignity of the court. The range of actions tending to undermine respect for the court or impair the proper administration of justice will include many circumstances that are not the subject of formally filed orders. For example, a trial court may employ criminal contempt proceedings in response to a loud or disrespectful attorney, witness, or spectator.\nWe conclude that a finding of criminal contempt, direct or indirect, does not require that the relevant \u201cprocess, order, directive, or instruction\u201d be a formal written order. Nor have our appellate opinions ever imposed such a requirement. See, e.g., State v. Pierce, 134 N.C. App. 148, 152, 516 S.E.2d 916, 919 (1999) (juror who researched certain issues in the case found in contempt of court because it was \u201cundisputed that Judge Cornelius directed the jury not to discuss the case with anyone outside the courtroom and not to conduct their own investigations\u201d); State v. Wall, 49 N.C. App. 678, 272 S.E.2d 152 (1980) (defendant held in criminal contempt of court for urging a witness to disobey a subpoena that would be issued in the future).\nIn support of his position to the contrary, defendant cites only Onslow County v. Moore, 129 N.C. App. 376, 499 S.E.2d 780 (1998). However, the defendant in Onslow County was held in civil contempt. Unlike criminal contempt, the definition of civil contempt is restricted by N.C. Gen. Stat. \u00a7 5A-21(a) (2005) to the failure to \u201ccomply with an order of a courtf.]\u201d (emphasis added).\nWe believe it to be the better practice for a trial court to put an instruction or directive in writing, especially if the order is to remain effective after the completion of the proceeding or matter then before the court. However, we conclude that G.S. \u00a7 5A-ll(a)(3) does not require that a finding of criminal contempt be predicated upon the failure to obey a written order. This assignment of error is overruled.\nDefendant next argues there was insufficient evidence to support the trial court\u2019s finding him in contempt of court. He contends that (1) \u201cthere is not competent evidence of record . . . that the defendant violated any provision of the orders of Judges Albright or Spivey\u201d; (2) \u201cthere is insufficient evidence . . . [that] defendant knowingly and willfully violated the oral orders or admonishments\u201d; and (3) \u201chis conduct in delivering an emergency motion to the trial court administrator on June 26, 2006 was not done after clear warning that such conduct was improper[.]\u201d We disagree.\nPreliminarily, we note that the show cause order alleges defendant\u2019s violation of Judge Albright\u2019s order of 23 June 2006, and does not reference Judge Spivey\u2019s order of 11 May 2006, or provide notice that defendant was in contempt of Judge Spivey\u2019s order. Thus, the trial court\u2019s subject matter jurisdiction was limited to consideration of whether defendant was in contempt of Judge Albright\u2019s instructions. However, defendant concedes that \u201cJudge Albright\u2019s admonition to the defendant on June 23 directed the defendant to comply with Judge Spivey\u2019s previous order. Judge Albright\u2019s directive required the defendant to comply with the prior order[.]\u201d Thus, the practical effect of the show cause order is the same as if it had noticed Judge Spivey\u2019s order, because Judge Albright incorporated Judge Spivey\u2019s instructions in his directive to defendant.\nJudge Spivey\u2019s instructions to the defendant on 11 May 2006 included in relevant part the following:\n. . . [T]he Court will find that. . . the respondent has been a frequent caller to the judges\u2019 office ... in addition to letters, faxes, and personal visits to the judge\u2019s office. The respondent has also been discovered to be in secure areas of the courthouse[.] . . .\nBased on these facts, the Court would direct that the respondent not call the judge\u2019s office about this case any further. . . . Any additional filings may be made with the clerk\u2019s office or whatever appropriate office and he should not fax or come to the judge\u2019s office to speak to any staff about this case.\nJudge Spivey\u2019s directive was repeated by Judge Albright at the hearing conducted 23 June 2006, wherein Judge Albright stated in pertinent part that defendant was \u201cnot to call, not to send faxes, not to send letters to the court staff, and not to visit the judges\u2019 office.\u201d\nDefendant admitted at trial and on appeal that on 26 June 2006 he entered the courthouse area marked \u201cJudges Office\u201d to hand deliver a document to the trial court administrator. We conclude that the trial court\u2019s determination, that this violated Judge Albright\u2019s order, was supported by competent evidence. We reject defendant\u2019s arguments to the contrary.\nDefendant argues that he had no clear warning that he was prohibited from delivering a document to the trial court administrator, even though the trial court administrator\u2019s office was in the judges\u2019 office area of the courthouse. This assertion is belied by the defendant\u2019s own letter to Judge Deramus on 20 June 2006, wherein he wrote in relevant part that:\nI, Edgar A. Simon, Jr., am the defendant in the above referenced case. . . . For an extended period of time, I was permitted to enter the 5th floor area of the courthouse where the Trial Court Administrator was located[.] ... I entered that area approximately one month ago, unaware that the area had been designated as off-limits to other than court staff, since mv last visit. . . . [When] a clerk approached me[.] . . . I asked her where I should go to file my calendar request, now that this area was restricted[.] . . . [0]n May 11, 2006, Judge Ronald E. Snivev . . . strongly admonish led! me to not call, send faxes or letters to court staff and to not visit the judges office of the courthouse. . . .\n(emphasis added). Defendant asserts that the \u201csingle act of contempt\u201d referenced in the Show Cause Order \u2014 defendant\u2019s visit to the trial administrator\u2019s office to personally deliver a document \u2014 did not violate Judge Albright\u2019s order. However, defendant\u2019s letter states that Judge Spivey told him not to \u201cvisit the judges office of the courthouse,\u201d and defendant admitted at the contempt hearing that Judge Albright told him \u201cyou are not to go to the judges\u2019 office, [or] visit the judges\u2019 office.\u201d It is undisputed that the trial court administrator\u2019s office was in the same part of the courthouse as the judges\u2019 offices, and that on 26 June 2006 defendant was in the courthouse area marked \u201cJudges Office\u201d to hand-deliver a document to the trial court administrator. We conclude that there was sufficient evidence that defendant knew he was to stay out of the judges\u2019 office area where the trial court administrator\u2019s office was located, particularly since he admitted having been warned that the area was \u201crestricted.\u201d\nDefendant also argues that, notwithstanding his 26 June 2006 entry into the judges\u2019 office section of the courthouse, he should not have been held in contempt because his purpose for being there was to leave an emergency motion for the trial court administrator. Defendant justifies his actions on the basis that Judge Spivey had told him that \u201cadditional filings may be made with the clerk\u2019s office or whatever appropriate office[.]\u201d Defendant directs our attention to the Case Management Plan for Forsyth County, which provides that emergency motions should be \u201caddressed to the Trial Court Administrator for calendaring.\u201d (emphasis added). On this basis, defendant contends that it was proper for him to personally deliver his motion. However, the case management plan says nothing about hand-delivering motions, and defendant offers no explanation for his failure simply to leave with the Clerk of Court his emergency motion addressed to the trial court administrator. This assignment of error is overruled.\nFinally, defendant argues that the trial court erred by placing on him the burden of proving that he was not in contempt of court, rather than requiring the State to prove beyond a reasonable doubt that defendant was in contempt. We conclude that the trial court did not shift the burden of proof to defendant.\nDefendant is correct that in a criminal contempt proceeding, as in any other criminal proceeding, the State has the ultimate burden of proof beyond a reasonable doubt of all elements of the offense. \u201cOn a hearing for criminal contempt, the State must prove all of the requisite elements under the applicable statute, beyond a reasonable doubt.\u201d State v. Key, 182 N.C. App. 624, 628, 643 S.E.2d 444, 448 (2007). However, \u201c \u2018[stipulations duly made during the course of a trial constitute judicial admissions binding on the parties and dispensing with the necessity of proof[.]\u2019 \u201d City of Brevard v. Ritter, 285 N.C. 576, 580-81, 206 S.E.2d 151, 154 (1974) (where defendant admits actions in violation of order the burden shifts to defendant \u201cto show compliance in order to purge himself of the contempt citation\u201d) (quoting [28] Strong, N.C. Index [4th], Trial, \u00a7 [139] Stipulations).\nDefendant\u2019s assertion that he was subjected to an improper burden of proof is based on his quotation, out of context, of a few fragments of the transcript. Defendant directs our attention to the following exchange occurring before the hearing:\nTHE COURT: Is this not a show-cause hearing? Was this not one where you were ordered to come in and show cause?\nMS. MASSEY (Defense Counsel): Yes sir.\nTRIAL COURT: Well, that puts the burden on you to present evidence.\nThereafter, the court recessed for several hours before conducting the hearing. At the beginning of the hearing, the following dialog took place:\nTRIAL COURT: . . . Ms. Massey, you\u2019re representing Mr. Simon, is that correct, in this matter after having been appointed by the Court?\nMS. MASSEY: Yes, Your Honor.\nTRIAL COURT: Does he admit or deny the allegations in the show-cause order?\nMS. MASSEY: Judge, as I have indicated to the Court and (the prosecutor) earlier, he admits the actions but denies that it is contempt.\nTRIAL COURT: All right. Then let him show cause why it is not contempt.\n(emphasis added). Defendant is correct that the State has the burden to prove the facts that form the basis of the contempt charge. N.C. Gen. Stat. \u00a7 5A-15(f) (2005) (\u201cIf the person is found to be in contempt, the judge must make findings of fact and enter judgment. The facts must be established beyond a reasonable doubt.\u201d). However, in the instant case, defendant admitted to the underlying facts that (1) on 26 June 2006 he entered the judges\u2019 office area of the courthouse; (2) that he had been directed by Judge Albright to comply with Judge Spivey\u2019s clear instruction not to go to the judges\u2019 office; and (3) that Judge Albright had told him to stay out of the judges\u2019 offices.\nAccordingly, there was no issue of fact to be decided, and thus no burden of proof placed on defendant. The only issue before the trial court was a question of law \u2014 whether defendant\u2019s admitted behavior constituted indirect criminal contempt. Reading the language cited by defendant in the context of the entire hearing, it is clear that the trial court properly required proof beyond a reasonable doubt of defendant\u2019s contempt of court. Additionally, the trial court\u2019s order clearly states that the facts were found \u201cbeyond a reasonable doubt\u201d which is the proper standard. This assignment of error is overruled.\nFor the reasons discussed above, we conclude that the trial court did not err and that its order should be\nAffirmed.\nJudges McGEE and STEPHENS concur.\n. The quoted statements are found in the fragment of transcript on page 28 of the record. We assume this is from the hearing before Judge Albright, because it is dated 23 June 2006, the date defendant was before Judge Albright. However, we remind defendant of his duty to prepare the appellate record properly, in order to eliminate potential ambiguities.",
        "type": "majority",
        "author": "SMITH, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General Grady L. Balentine, Jr. , for the State.",
      "Don Willey, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. EDGAR SIMON\nNo. COA06-1483\n(Filed 7 August 2007)\n1. Contempt\u2014 indirect criminal contempt \u2014 violation of formal written order not required\nThe trial court did not err by holding defendant in indirect criminal contempt of court even though defendant contends he did not violate a formal written, order when he visited the office of the trial court administrator in violation of the trial court\u2019s directive to stay out of the judges\u2019 office area, because: (1) N.C.G.S. \u00a7 5A-ll(a)(3) does not limit criminal contempt to violation of a formal written order that has been entered and filed with the clerk of court; and (2) although defendant cites a case for his position to the contrary, the defendant in that case was held in civil contempt which is restricted by N.C.G.S. \u00a7 5A-21(a) to the failure to comply with an order of a court.\n2. Contempt\u2014 indirect criminal contempt \u2014 sufficiency of evidence\nThe trial court did not err by holding defendant in indirect criminal contempt of court even though defendant contends there was insufficient evidence to support the finding, because: (1) defendant concedes that Judge Albright\u2019s admonition to defendant on June 23 directed defendant to comply with Judge Spivey\u2019s previous order, and thus the practical effect of the show cause order is the same as if it had noticed Judge Spivey\u2019s order when it incorporated Judge Spivey\u2019s instructions in its directive to defendant; (2) defendant admitted at trial and on appeal that on 26 June 2006 he entered the courthouse area marked \u201cJudges Office\u201d to hand deliver a document to the trial court administrator; (3) there was sufficient evidence that defendant knew he was to stay out of the judges\u2019 office area where the trial court administrator\u2019s office was located, particularly since he admitted having been warned that the area was restricted; and (4) the case management plan says nothing about hand-delivering motions, and defendant offers no explanation for his failure to simply leave with the Clerk of Court his emergency motion addressed to the trial court administrator.\n3. Contempt\u2014 indirect criminal contempt \u2014 burden of proof\nThe trial court did not err in an indirect criminal contempt case by allegedly placing the burden on defendant to prove that he was not in contempt of court rather than requiring the State to prove beyond a reasonable doubt that defendant was in contempt, because: (1) although defendant is correct that the State has the burden to prove the facts that form the basis of the contempt charge, in the instant case defendant admitted to the underlying facts that on 26 June 2006 he entered the judges\u2019 office area of the courthouse, that he had been directed by Judge Albright to comply with Judge Spivey\u2019s clear instruction not to go to the judges\u2019 offices, and that Judge Albright had told him to stay out of the judges\u2019 offices; (2) there was no issue of fact to be decided, and thus no burden of proof was placed on defendant; (3) the only issue before the trial court was a question of law involving whether defendant\u2019s admitted behavior constituted indirect criminal contempt; and (4) the trial court properly required proof beyond a reasonable doubt of defendant\u2019s contempt of court, and its order states the facts were found beyond a reasonable doubt.\nAppeal by defendant from judgment entered 9 August 2006 by Judge C. Philip Ginn in Forsyth County Superior Court. Heard in the Court of Appeals 6 June 2007.\nAttorney General Roy Cooper, by Special Deputy Attorney General Grady L. Balentine, Jr. , for the State.\nDon Willey, for defendant-appellant."
  },
  "file_name": "0247-01",
  "first_page_order": 279,
  "last_page_order": 288
}
