State v. Hobson , 261 N.C. App. 60 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1052
Filed: 21 August 2018
New Hanover County, No. 14 CRS 9297
STATE OF NORTH CAROLINA
v.
JEFFREY KEITH HOBSON
Appeal by defendant from judgment entered 10 March 2017 by Judge Imelda
J. Pate in New Hanover County Superior Court. Heard in the Court of Appeals 2
May 2018.
Attorney General Joshua H. Stein, by Assistant Attorney Generals Stuart M.
Saunders and Teresa M. Postell, for the State.
Lisa S. Costner for defendant.
ELMORE, Judge.
Defendant Jeffrey Keith Hobson appeals from judgment entered upon a jury
verdict finding him guilty of misdemeanor stalking. On appeal, defendant raises five
assignments of error related to the trial court’s subject-matter jurisdiction; its
admission of certain evidence, including civil domestic violence protective orders,
portions of defendant’s ex-girlfriend’s testimony, and various photographs; and its
denial of his motion to dismiss.
STATE V. HOBSON
Opinion of the Court
Although the trial court may have abused its discretion in admitting into
evidence approximately twenty-eight photographs of firearms, ammunition, and
surveillance equipment found throughout defendant’s home, we nevertheless
conclude that defendant received a fair trial, free from prejudicial error.
Background
The evidence at trial tended to show that defendant and the victim, Lorrie,
were in a dating relationship for approximately four to five months beginning in late
2009. The relationship was not serious or exclusive, and it ended when defendant
moved from Wilmington to Greensboro in early 2010.
In October 2010, Lorrie began working at Gold’s Gym in Wilmington. When
defendant moved back to Wilmington in early 2011, he began making persistent and
unwelcome attempts to reconnect with Lorrie, which included repeatedly coming to
her workplace and staring at her, calling and texting her, leaving a note on her
vehicle, and sending derogatory letters about Lorrie to her father and boyfriend.
When Lorrie’s ex-husband asked defendant to leave her alone, defendant indicated
that “he would make [her] pay and he would not leave [her] alone.” Defendant was
eventually banned from and escorted out of Gold’s Gym by law enforcement.
In February 2012, Lorrie filed a complaint for and obtained a civil domestic
violence protective order (DVPO) against defendant pursuant to N.C. Gen. Stat. §
50B. The DVPO provided that defendant not harass or interfere with Lorrie or her
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Opinion of the Court
children, that he stay away from Lorrie’s residence and workplace, and that he
surrender all firearms in his possession to law enforcement. In February 2013, Lorrie
sought and was granted a renewal of the DVPO for an additional twelve months based
on her continued fear of defendant as well as defendant’s conduct in approaching
Lorrie and her children at a Halloween outing in 2012, while the initial DVPO was
still in effect, to ask “if [she] was still mad at him.” Defendant was present at both
the initial hearing in 2012 and the renewal hearing in 2013, and redacted versions of
the DVPOs as well as the filings related thereto were admitted into evidence at trial.
Lorrie did not seek an additional renewal of the DVPO, which expired in February
2014.
In October 2014, a deputy with the New Hanover County Sheriff’s Office
responded to a home “in reference to somebody stating that they had received a letter
. . . in the mail that appeared to be a flyer for prostitution.” The flyer, which had been
mailed to countless residents of New Hanover County, stated that Lorrie was a
prostitute with sexually transmitted diseases, and it included her photograph, home
address, cell phone number, work address, and work number. Lorrie told law
enforcement that she suspected defendant was responsible for the flyers.
Defendant’s ex-girlfriend, Holly, testified that she began a dating relationship
with defendant in 2010, and he moved into her Wilmington home in May 2011. Holly
was aware of defendant’s attempts to reconnect with Lorrie. According to Holly,
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Opinion of the Court
defendant wanted to find out why Lorrie had stopped seeing him, he was angry that
Lorrie would not accept his calls, and he expressed a hatred for Lorrie and a desire
to make her miserable; defendant “wanted revenge” and “he said [Lorrie] would
deserve whatever she got.” Sometime after Lorrie obtained the DVPO against
defendant, defendant showed Holly a copy of the flyer concerning Lorrie, told Holly
that he intended to mail the flyers, and asked Holly for the addresses of people in her
neighborhood. Defendant also told Holly “not to say anything and to forget that [she]
ever saw it,” which Holly stated she interpreted as a threat.
Holly further testified that in January 2013, defendant fractured her nose
during an argument about defendant’s inappropriate communications with other
women. Holly pressed assault charges against defendant, but later requested that
the charges be dismissed. Holly explained that she was “afraid that if [she] continued
with the charges that [she] would be punished somehow,” that defendant was
embarrassed and angry about being arrested for assault, and that defendant told her
“he would never be arrested again” and “he would not be taken alive.” Holly
thereafter discovered a stack of the flyers concerning Lorrie among defendant’s
belongings, and she took one as “[she] was afraid that the same thing would have
been done to [her], and [she] wanted to have proof of what [defendant] was capable
of.” Holly texted Lorrie about the assault and warned Lorrie to be careful, but she
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Opinion of the Court
did not mention the flyers. Holly did not submit her copy of the flyer to law
enforcement until October 2014, after the others had been mailed.
In December 2014, law enforcement officers executed a search warrant at
defendant’s residence. Firearms, ammunition, and surveillance equipment were
located throughout the home, and approximately twenty-eight photographs of those
items were admitted into evidence at trial. No white envelopes, American flag
stamps, or images or other documents depicting Lorrie as a prostitute were found in
the home.
At the conclusion of the State’s evidence, defendant moved to dismiss the
charge on the basis that “the State ha[d] failed on elements of the crime.” The trial
court denied the motion. Defendant did not present any evidence on his behalf but
renewed his motion to dismiss, which the trial court again denied. The trial court
then charged the jury as follows:
If you find from the evidence beyond a reasonable
doubt that on or about the alleged dates the defendant
willfully on more than one occasion harassed or engaged in
a course of conduct directed at the victim without legal
purpose, and that the defendant at that time knew or
should have known that the harassment or course of
conduct would cause a reasonable person to fear for that
person’s safety or the safety of that person’s immediate
family, or would cause a reasonable person to suffer
substantial distress by placing that person in fear of death
or bodily injury or continued harassment, it would be your
duty to return a verdict of guilty.
If you do not so find, or if you have a reasonable
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Opinion of the Court
doubt as to one or more of these things, it would be your
duty to return a verdict of not guilty.
Following the guilty verdict, the trial court sentenced defendant to 75 days’
imprisonment, suspended on the condition that he serve 60 months’ supervised
probation. The trial court also ordered that defendant serve 18 days in the New
Hanover County jail and pay $195.00 in costs as well as a $2,000.00 fine. Defendant
appeals.
Discussion
On appeal, defendant contends the trial court (I) lacked subject-matter
jurisdiction over the misdemeanor charge of stalking; (II) abused its discretion in
admitting Lorrie’s DVPOs against defendant into evidence; (III) erred in failing to
exclude from evidence certain portions of Holly’s testimony; (IV) abused its discretion
in admitting into evidence numerous photographs of firearms, ammunition, and
surveillance equipment located throughout defendant’s home; and (V) erred in
denying defendant’s motion to dismiss the charge for insufficiency of the evidence.
I. Subject-Matter Jurisdiction
As an initial matter, defendant asserts that the trial court lacked subject-
matter jurisdiction over the misdemeanor charge of stalking “where the charge was
not initiated by a grand jury presentment prior to indictment.”
The State is required to prove subject-matter jurisdiction in the trial court
beyond a reasonable doubt. State v. Batdorf, 293 N.C. 486, 494, 238 S.E.2d 497,
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Opinion of the Court
50203 (1977). When the record on appeal affirmatively shows a lack of subject-
matter jurisdiction in the trial court, this Court will arrest judgment or vacate any
order entered without authority. State v. Petersilie, 334 N.C. 169, 175, 432 S.E.2d
832, 836 (1993) (citation omitted). “Whether a trial court has subject-matter
jurisdiction is a question of law, reviewed de novo on appeal.” McKoy v. McKoy, 202
N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010) (citation omitted).
In the instant case, a grand jury indicted defendant for the offense of stalking
pursuant to N.C. Gen. Stat. § 14-277.3A, which provides that “[a] violation of this
section is a Class A1 misdemeanor.” N.C. Gen. Stat. § 14-277.3A(d) (2017). While
“the district court division has exclusive, original jurisdiction for the trial of criminal
actions . . . below the grade of felony, and the same are hereby declared to be petty
misdemeanors,” N.C. Gen. Stat. § 7A-272(a) (2017), the superior court has jurisdiction
to try a misdemeanor “[w]hen the charge is initiated by presentment,” N.C. Gen. Stat.
§ 7A-271(a)(2) (2017).
A presentment is a written accusation by a grand jury,
made on its own motion and filed with a superior court,
charging a person . . . with the commission of one or more
criminal offenses. A presentment does not institute
criminal proceedings against any person, but the district
attorney is obligated to investigate the factual background
of every presentment returned in his district and to submit
bills of indictment to the grand jury dealing with the
subject matter of any presentments when it is appropriate
to do so.
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Opinion of the Court
N.C. Gen. Stat. § 15A-641(c) (2017). Simply stated, “a presentment amounts to
nothing more than an instruction by the grand jury to the public prosecuting attorney
to frame a bill of indictment.” State v. Wall, 271 N.C. 675, 682, 157 S.E.2d 363, 368
(1967) (citation omitted).
Defendant contends no evidence in the record on appeal shows a presentment
was filed with the superior court in accordance with N.C. Gen. Stat. § 15A-641(c).
However, the amended record contains a certified copy of the presentment issued by
the grand jury on 15 December 2014 and filed with the superior court on 28 January
2015. Thus, because the stalking charge was properly initiated by a presentment, we
conclude that the superior court had subject-matter jurisdiction over the
misdemeanor pursuant to N.C. Gen. Stat. § 7A-271(a)(2). See Petersilie, 334 N.C. at
178, 432 S.E.2d at 837 (“When the record is amended to add the presentment, it is
clear the superior court had jurisdiction[.]”). Defendant’s argument is dismissed.
II. Domestic Violence Protective Orders
Defendant next contends the trial court abused its discretion in admitting the
DVPOs and filings related thereto into evidence. He asserts that the findings of fact
contained in the DVPOs had unfairly prejudiced defendant and “would have been
confusing to the jury as to the issues” to be determined at trial.
Evidence is relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
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STATE V. HOBSON
Opinion of the Court
probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401
(2017). Whether the probative value of relevant evidence is substantially outweighed
by “ ‘the danger of unfair prejudice, confusion of the issues, or misleading the jury’ ”
such that the evidence should be excluded is a determination within the trial court’s
sound discretion. State v. Hyde, 352 N.C. 37, 5455, 530 S.E.2d 281, 293 (2000)
(quoting N.C. Gen. Stat. § 8C-1, Rule 403 (1999)). “Such a decision may be reversed
for abuse of discretion only upon a showing that the trial court’s ruling was manifestly
unsupported by reason and could not have been the result of a reasoned decision.”
State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992) (citations, quotation
marks, and brackets omitted).
Prior to trial in the instant case, defendant made an oral motion in limine to
exclude the DVPOs from evidence. Defendant specifically objected to “anything going
beyond just evidence that the [DVPO] was entered by the District Court Judge,”
asserting that it “would not give the defendant a fair opportunity to defend himself if
we have put before the jury judicial findings. The jury may be confused and say,
‘Well, a judge in District Court found that happened, so we’re bound by that.’ ” In
response, the State emphasized that defendant had been present for and given an
opportunity to be heard at both DVPO hearings; that the elements of the stalking
offense required proof that a reasonable person in the victim’s circumstances would
fear for her safety; and that the history between defendant and Lorrie as evidenced
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Opinion of the Court
by and described within the DVPOs was therefore directly relevant to a fact of
consequence at trial.
We agree the DVPOs were relevant to show defendant’s course of conduct as
well as his motive to commit the offense of stalking. See State v. Morgan, 156 N.C.
App. 523, 52627, 577 S.E.2d 380, 384 (2003) (holding that evidence of prior and
expired DVPOs was admissible to show defendant’s intent to kill). After reviewing
the DVPOs, the trial court redacted those portions it found to be unfairly prejudicial
to defendant, and only the redacted versions were admitted into evidence and
published to the jury. As to defendant’s argument that the jury was highly likely to
regard the findings contained in the DVPOs as true and binding simply because they
had been handwritten by a district court judge, the trial court’s instructions to the
jury included the following relevant excerpts:
Members of the jury, all of the evidence has been
presented. It is now your duty to decide from this evidence
what the facts are.
The defendant is presumed innocent. The State must
prove to you that the defendant is guilty beyond a
reasonable doubt.
You are the sole judges of the weight to be given any
evidence.
The law requires the presiding judge to be impartial. You
should not infer from anything that I have done or said that
the evidence is to be believed or to be disbelieved, that a
fact has been proven, or what your findings ought to be. It
is your duty to find the facts and render a verdict reflecting
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STATE V. HOBSON
Opinion of the Court
the truth.
Given that the trial court redacted the DVPOs and properly instructed the jury
regarding the State’s burden of proof as well as the jury’s duty “to find the facts,” we
conclude that the trial court did not abuse its discretion in admitting the DVPOs and
related filings into evidence.
III. Rule 404(b) Testimony
Defendant next contends the trial court erred in failing to exclude Holly’s
testimony that defendant had assaulted her in the past, that she was afraid of
defendant, and that defendant told Holly “he would never be arrested again” and “he
would not be taken alive.” Defendant asserts that this testimony was only relevant
to show propensity, or that defendant was a “bad guy,” and does not fit within an
exception listed in Rule 404(b) of the Rules of Evidence.
At the outset, we note that defendant filed a motion in limine to exclude from
evidence the fact that he had been charged with assaulting Holly, arguing that “the
charge was dismissed by the State, having at this point little or no probative value.”
In response, the State represented to the trial court that it did not intend to introduce
evidence of the charge or of defendant’s arrest, but it did expect Holly to testify
regarding the assault itself. The State argued that the testimony was directly
relevant because it bore on the victim’s reasonable fear of defendant. Defendant later
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Opinion of the Court
withdrew his motion, explaining, “If the State is going to be allowed to . . . have [Holly]
testify that there was an assault, then I want to get in the end result of that.”
Defendant did not object during trial to any portion of Holly’s testimony that
he now challenges on appeal. Nevertheless, he contends the testimony should have
been excluded by the trial court as it does not fit within any of the exceptions listed
in Rule 404(b). He further argues that the testimony should have been excluded as
unfairly prejudicial pursuant to Rule 403.
Unpreserved errors in criminal cases are reviewed for plain error only. N.C.
R. App. P. 10(a)(4). “For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial.” State v. Lawrence, 365 N.C.
506, 518, 723 S.E.2d 326, 334 (2012) (citation omitted). That is, the defendant must
prove that “absent the error the jury probably would have reached a different verdict.”
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (citation omitted).
Pursuant to Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in
conformity therewith.” N.C. Gen. Stat. § 8C-1, Rule 404(b) (2017). “It may, however,
be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake, entrapment or
accident.” Id. This list of permissible purposes is not exclusive, and “the fact that
evidence cannot be brought within a listed category does not necessarily mean that it
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Opinion of the Court
is inadmissible.” State v. Groves, 324 N.C. 360, 370, 378 S.E.2d 763, 769 (1989)
(citation, quotation marks, and brackets omitted). Rather, there is a general rule of
inclusion regarding “relevant evidence of other crimes, wrongs or acts by a defendant,
subject to but one exception requiring its exclusion if its only probative value is to
show that the defendant has the propensity or disposition to commit an offense of the
nature of the crime charged.” State v. Coffey, 326 N.C. 268, 27879, 389 S.E.2d 48,
54 (1990).
Here, the challenged portions of Holly’s testimony were relevant not only to
show defendant’s propensity to commit the offense of stalking, but also established
that the victim, Lorrie, was in reasonable fear of defendant. Holly testified to texting
Lorrie about the assault and warning Lorrie to be careful, and that Holly herself was
afraid of defendant. This portion of Holly’s testimony demonstrates both that Lorrie
had a legitimate basis for her fear of defendant and that her fear was reasonable as
required by N.C. Gen. Stat. § 14-277.3A. Similarly, defendant’s statements to
Hollythat “he would never be arrested again” and “he would not be taken
alive”were made in reference to the assault and further illustrate a course of
conduct that would cause a reasonable person to fear for her safety.
Under these circumstances, defendant has failed to show that the trial court
plainly erred in admitting the challenged portions of Holly’s testimony.
IV. Photographic Evidence
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Opinion of the Court
Defendant next asserts that the trial court abused its discretion in admitting
into evidence approximately twenty-eight photographs of firearms, ammunition, and
surveillance equipment found throughout defendant’s home during the execution of
the search warrant. He contends that because “[t]here was no evidence of the use or
presence of a firearm with regard to this offense, and no evidence that [defendant]
used surveillance equipment in the commission of the crime of stalking,” the
probative value of the photographs was substantially outweighed by the danger of
unfair prejudice.
Pursuant to Rule 403 of the Rules of Evidence, in determining whether to
admit photographic evidence, the trial court must weigh the probative value of the
photographs against the danger of unfair prejudice to defendant. State v. Hennis,
323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). Whether photographic evidence is
admissible under Rule 403 is within the sound discretion of the trial court, and its
ruling will not be reversed on appeal absent an abuse of discretion. Id.
In the instant case, the photographs of defendant’s firearms, ammunition, and
surveillance equipmentall of which defendant legally possessed at the time the
search warrant was executedwere wholly irrelevant to the issue of whether
defendant had committed the offense of stalking. We therefore agree with defendant
that the probative value of the photographs was substantially outweighed by the
danger of unfair prejudice, and the trial court should have exercised its discretion by
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Opinion of the Court
excluding the photographs. However, in light of the overwhelming additional
evidence presented at trial, we conclude defendant has failed to show that the
admission of the photographs amounted to prejudicial error.
V. Motion to Dismiss
In his final assignment of error, defendant challenges the trial court’s denial
of his motion to dismiss the charge of misdemeanor stalking where he contends the
State “failed to prove that [defendant] was the person who created and mailed the
inflammatory flyers.”
“When ruling on a defendant’s motion to dismiss, the trial court must
determine whether there is substantial evidence (1) of each essential element of the
offense charged, and (2) that the defendant is the perpetrator of the offense.” State
v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. “In making its determination, the trial
court must consider all evidence admitted, whether competent or incompetent, in the
light most favorable to the State, giving the State the benefit of every reasonable
inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172,
192, 451 S.E.2d 211, 223 (1994) (citation omitted). “This Court reviews the trial
court’s denial of a motion to dismiss de novo.” Smith, 186 N.C. App. at 62, 650 S.E.2d
at 33.
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Opinion of the Court
On appeal, defendant does not assert that the State failed to present
substantial evidence of each element of the stalking offense; rather, his sole argument
is that there was insufficient evidence of defendant being the perpetrator of the
offense. According to defendant, the only evidence linking him to the flyer was Holly’s
testimony, which he maintains was “inadmissible and prejudicial.”
As discussed in section III above, Holly’s testimony was not inadmissible or
unfairly prejudicial to defendant. Moreover, her testimony was subject to cross-
examination, during which Holly admitted to having been embarrassed defendant
was trying to reconnect with Lorrie; that she and defendant had disputes regarding
money and property after their relationship ended; that she owned a computer and
printer; that she did not inform Lorrie or law enforcement about the flyer when she
first discovered it; that her computer was never examined by law enforcement; and
that she takes medications for mental health issues.
While defendant attempted at trial to raise doubt about the identity of the
person who mailed the flyersinsinuating that Holly could have been the
culpritand although he challenges certain portions of Holly’s testimony on appeal,
he raises no challenge to that portion of Holly’s testimony in which she stated
defendant showed her a copy of the flyer, told her that he intended to mail them, and
asked her for addresses, nor does he challenge Holly’s claim to have found a stack of
the flyers among defendant’s belongings. We therefore conclude the State presented
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Opinion of the Court
substantial evidence to support a conclusion that defendant was the perpetrator of
the offense, and the trial court did not err in denying defendant’s motion to dismiss.
Conclusion
Although we agree with defendant that the trial court abused its discretion
under Rule 403 in admitting into evidence numerous photographs of firearms,
ammunition, and surveillance equipment found throughout defendant’s home, for the
reasons stated herein, we conclude that defendant received a fair trial, free from
prejudicial error.
NO PREJUDICIAL ERROR.
Judges TYSON and ZACHARY concur.
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