An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1196
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
RANDI LEIGH ROBERSON,
Plaintiff,
v. Vance County
No. 12 CVD 809
RUSSELL DAVID ROBERSON,
Defendant.
_________________________
MARLINA LYNETTE ROBERSON,
Plaintiff,
v. Vance County
No. 12 CVD 1019
RUSSELL DAVID ROBERSON,
Defendant.
Appeal by defendant from orders entered 5 April 2013 by
Judge John W. Davis in Vance County District Court. Heard in
the Court of Appeals 17 February 2014.
Legal Aid of North Carolina, Inc., by Dietrich D. McMillan,
Jason Langberg, Aaron J. Rogers, Celia Pistolis, and Gina
Reyman, for plaintiff–appellee Randi Leigh Roberson.
Melissa C. Lemmond, for plaintiff–appellee Marlina Lynette
Roberson.
Stainback, Satterwhite & Zollicoffer, PLLC, by Paul J.
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Stainback, for defendant–appellant.
MARTIN, Chief Judge.
Defendant Russell David Roberson appeals from domestic
violence orders of protection, forbidding acts or threats of
domestic violence to, and contact with, his daughter, plaintiff
Randi Leigh Roberson (“Randi”), and his wife, plaintiff Marlina
Lynette Roberson (“Mrs. Roberson”). We affirm.
The evidence presented at the hearing tended to show that
defendant and Mrs. Roberson were twice married to each other,
and that three children were born to their first marriage; two
daughters and a son. Randi is their eldest child; seventeen on
the date of the events giving rise to this action. On the
morning of 10 August 2012, just before 9:00 a.m., defendant,
Randi, and the other children were in the family residence in
Henderson, North Carolina, while Mrs. Roberson was at work about
an hour away. When Randi descended the stairs, defendant asked
her for the keys to the van that Randi drove to and from work,
which vehicle was registered in Mrs. Roberson’s name, so that
defendant could move the van into the yard. In response to his
request, Randi gave defendant her key ring, which included the
key to the van. Defendant walked out of the house, moved the
vehicle, came back into the house, and returned the key ring to
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Randi, who put it in her pocket. Then, moments later, defendant
demanded that Randi take the key for the van off of the key ring
and give it back to him. According to Randi’s testimony, when
she refused, defendant said, “We can do this the easy way or we
can do this the hard way. I will slam you down right here and
take that key.” Randi then said that defendant “proceeded to
grab [her around her neck] in a choke hold [from behind],”
during which time she “couldn’t breathe,” “felt restrained,” and
“was scared that he was gonna hurt [her].” In an attempt to try
to “get free any way [she] could,” Randi said she tried to bite
defendant’s arm, but was only able to bite her own lip. When
she was finally able to “get free” from defendant’s hold around
her neck, Randi ran past her twelve-year-old brother, who had
been standing in the kitchen throughout the altercation, and ran
down the hallway into the garage. Randi testified, without
objection, that, after she ran from the kitchen, her brother
“was yelling out behind [her] to——asking [her] dad to stop.”
Defendant gave chase and “caught [Randi’s] shirt” as she
entered the garage. Defendant then “got [her] in a choke hold
again up against [their] air hockey table.” After “struggl[ing]
there for a while,” defendant “slammed [her face] down against
the freezer” and grabbed the key ring out of her pocket, at
which point Randi ran outside, jumped the fence into her
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neighbor’s yard, and called both 9-1-1 and her mother. Randi
testified that her eye was bruised as a result of defendant
“slam[ing]” her face against the freezer.
Mrs. Roberson testified that, upon receiving a “frantic,
upset” phone call from her twelve-year-old son, she immediately
jumped into her car and left work to drive home. Mrs. Roberson
then testified, without objection, that she called Randi and
asked her where she was, to which Randi replied that she was
outside in the yard at the neighbor’s house. When Mrs. Roberson
asked if Randi was okay, Randi started crying and recounted to
Mrs. Roberson that defendant “had choked her and that——had
slammed her down on the ground in the——down on the floor in the
garage and had hit her face on the refrigerator, and that, she
finally got away from him and she called 9-1-1, and the police
was [sic] on the way.” When Mrs. Roberson arrived at the family
residence, she saw that Randi “had a really red, splotchy eye”
that “had started to bruise,” and “she was complaining of a
swollen neck, and it was swollen, no marks on the neck, but it
was swollen.”
Mrs. Roberson also testified, without objection, that,
several years prior to this incident, defendant had “harmed
[Mrs. Roberson] before,” where “[h]e bit [her] and threw [her]
to the ground, bruising [her] from head to toe.” Mrs. Roberson
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further testified that her relationship with defendant was
an emotional, mental struggle all the time,
and he has to be right, he has to——he has to
have everything his way and such control,
he’s got to make sure [the family] do[es]
what he says, move where he says, go where
he says, and not go where he says . . . .
[H]e escalates emotionally, and he becomes
verbally abusive and now, physically.
Mrs. Roberson also said that after the first year of their
second marriage to each other, “it started again, and that’s why
[she’s] worried, and that’s why [she’s] afraid, and that’s why
[she’s] scared because it’s going down the same path . . . the
same path, the same controlling behavior, the same emotional and
mental control.” She said that, during their second marriage,
defendant “started controlling where [she] could go. . . .
[They] were never to go to anybody else’s holiday, you know,
parties or anything. It just——it was a control thing. It was
an emotional thing.” “If [defendant] couldn’t [make her] do
something then it was just like hounding [her] constantly making
[her] feel worthless, laughing at [her] just, you know, making
[her] feel like——belittled, in which [sic] he’s done this entire
time.” Mrs. Roberson also said, without objection, that her
children “tell [her] that they were afraid of [defendant],”
which was corroborated by Randi’s own testimony that she is
afraid of defendant because she “never know[s] what the
punishment will be” and because she is “afraid that if
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[defendant] comes back” to the family residence, a punishment
like the one she suffered during the incident at issue, “where
he——he slammed [her] and choked [her] and all this,” “will
happen again and he will try to take out revenge on [her].”
Additionally, when asked whether defendant ever threatened Mrs.
Roberson with a firearm, Mrs. Roberson testified that, “[l]ong
ago,” when she tried to leave with Randi when she was very
small, defendant “put his finger up to [her] head and said, ‘I
will do that if you ever try to take her.’”
Defendant testified on his own behalf that, on the morning
of 10 August 2012, after repeatedly asking Randi for her key
ring and being met only with her refusals to comply with his
request, defendant “reached for the keys to grab the keys out of
her pocket.” Defendant said that, as he reached for the keys,
Randi “leaned over and started plowing toward [him]” and
“knocked [him] backwards.” Defendant said that it was at this
point, as he was “trying to catch [him]self,” that his “hand
went around back of her and just grabbed her trying to stand
up.” Defendant said then that Randi “took off down——down the
hallway,” and that he followed behind her as she ran away from
him. According to defendant, as Randi was running away from him
and he was following closely behind her, Randi tripped over a
pile of dirty clothes and started falling, but, “to keep her
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from falling, . . . [he] hit her in the back and she must’ve
bruised her eye on the way down in her fall.” He then testified
that, as she was falling, he “grabbed her to brace her, and she
immediately started biting [his] arm” and bit him for
“approximately a couple of minutes there.” Defendant then said
that he “immediately pulled [his] arm back out” when Randi
started coughing, then reached around and “grabbed the key out
of her pocket,” which is when Randi “hollered 9-1-1” and ran to
the neighbor’s house. Defendant said he then walked down to the
boat dock at the back of the family residence, waited about
fifteen minutes, and then walked back to the residence, where he
was met by law enforcement officers and was placed under arrest.
Randi and Mrs. Roberson each filed a complaint and motion
for a domestic violence protective order (“DVPO”) against
defendant, alleging that defendant “has attempted to cause or
has intentionally caused me bodily injury [or has caused bodily
injury to the children living with me],” or “has placed me or a
member of my family or household in fear of imminent serious
bodily injury or in fear of continued harassment that rises to
such a level as to inflict substantial emotional distress.”
Both complaints requested, in part, that the court order the
eviction of defendant from the family residence. The court
entered ex parte domestic violence orders of protection against
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defendant as to both complaints. Defendant filed answers with
respect to both complaints requesting that the matters be
dismissed. After numerous continuances, the matters were
consolidated for hearing and heard on 2 April 2013. Defendant
moved to dismiss both cases at the close of the complainants’
evidence, which motions were denied. On 5 April 2013, the trial
court entered domestic violence orders of protection against
defendant in which it concluded, in part, that defendant
committed acts of domestic violence against Randi and against
the minor child residing with Mrs. Roberson, and ordered that
defendant stay away from the parties’ residence. Defendant
appeals from both orders.
_________________________
“[W]hen the trial court sits without a jury, the standard
of review on appeal [for a DVPO] is whether there was competent
evidence to support the trial court’s findings of fact and
whether its conclusions of law were proper in light of such
facts.” Burress v. Burress, 195 N.C. App. 447, 449, 672 S.E.2d
732, 734 (2009) (first alteration in original) (internal
quotation marks omitted). Because “the trial judge is present
for the full sensual effect of the spoken word, with the nuances
of meaning revealed in pitch, mimicry and gestures, appearances
and postures, shrillness and stridency, calmness and composure,
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all of which add to or detract from the force of spoken words,”
Brandon v. Brandon, 132 N.C. App. 646, 651, 513 S.E.2d 589, 593
(1999) (internal quotation marks omitted), “[w]here the trial
court sits as the finder of fact, and where different reasonable
inferences can be drawn from the evidence, the determination of
which reasonable inferences shall be drawn is for the trial
[court].” Id. (second alteration in original) (internal
quotation marks omitted). “Where there is competent evidence to
support the trial court’s findings of fact, those findings are
binding on appeal.” Burress, 195 N.C. App. at 449–50,
672 S.E.2d at 734.
N.C.G.S. § 50B-3(a) provides that, if a trial court “finds
that an act of domestic violence has occurred, the court shall
grant a protective order restraining the defendant from further
acts of domestic violence.” N.C. Gen. Stat. § 50B-3(a) (2013).
Domestic violence is defined as
the commission of one or more of the
following acts upon an aggrieved party or
upon a minor child residing with or in the
custody of the aggrieved party by a person
with whom the aggrieved party has or has had
a personal relationship, but does not
include acts of self-defense:
(1) Attempting to cause bodily injury,
or intentionally causing bodily
injury; or
(2) Placing the aggrieved party or a
member of the aggrieved party’s
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family or household in fear of
imminent serious bodily injury or
continued harassment, as defined
in G.S. 14-277.3A, that rises to
such a level as to inflict
substantial emotional distress; or
(3) Committing any act defined in
G.S. 14-27.2 through G.S. 14-
27.7[, which are criminal offenses
in the “Rape and Other Sex
Offenses” Article of the General
Statutes].
N.C. Gen. Stat. § 50B-1(a) (2013). Additionally, the term
“personal relationship” referenced in this subsection includes a
relationship wherein the parties involved are either “current or
former spouses” or “related as parents and children.” N.C. Gen.
Stat. § 50B-1(b).
Defendant first asserts that the trial court’s findings of
fact are not supported by competent evidence. However, a
careful examination of the evidence in the record before us and
of defendant’s arguments in his brief reveals that there is
competent evidence to support the court’s findings, and that
defendant is merely urging this Court to reweigh the evidence
presented to the trial court, and to give greater consideration
to his own testimony which is favorable to him. Because it is
for the trial court to determine, when sitting as the finder of
fact, which reasonable inferences are to be drawn from the
evidence when such inferences can be so drawn, see Brandon,
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132 N.C. App. at 651, 513 S.E.2d at 593, and because findings of
fact are binding on appeal where there is competent evidence to
support them, see Burress, 195 N.C. App. at 449–50, 672 S.E.2d
at 734, and since there is ample competent evidence in the
record to support the trial court’s binding findings of fact, we
must decline defendant’s entreaty to disturb them.
Defendant next suggests that the acts he committed against
Randi were not acts of domestic violence but, instead, acts of
parental discipline, and asserts that the court’s determination
that his acts were “well in excess of ordinary and
constitutionally protected discipline, and, in fact, his actions
constituted an assault that cause physical injury to Randi” is,
in his words, “just wrong.” However, it is defendant’s burden
“to present the arguments and authorities upon which [he]
rel[ies]” in support of his position, see N.C.R. App. P. 28(a),
and “[t]he scope of review on appeal is limited to issues so
presented . . . .” Id. In his brief, defendant presented no
substantive legal argument to support his assertion that choking
his daughter twice, chasing her throughout the family residence,
and slamming her face against a freezer with such force that it
left a bruise, all for the self-professed purpose of “trying to
prove a point with and discipline his child,” are acts that are
“not what was comprehended or envisioned by the enactment of the
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Domestic Violence Act as set forth in Chapter 50B.” Since
issues “in support of which no reason or argument is stated[]
will be taken as abandoned,” N.C.R. App. P. 28(b)(6); see also
Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d
360, 361 (per curiam) (“It is not the role of the appellate
courts . . . to create an appeal for an appellant.”), reh’g
denied, 359 N.C. 643, 617 S.E.2d 662 (2005), we decline to
consider defendant’s unsupported argument further.
Our disposition renders it unnecessary to consider
defendant’s remaining substantive issue on appeal, as it was not
preserved by proper objection at trial. We also decline to
address those remaining assertions in support of which defendant
has provided no legal argument.
Affirmed.
Judges ELMORE and HUNTER, JR. concur.
Report per Rule 30(e).