An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.
NO. COA13-812
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Rowan County
No. 12 CRS 054233
RONALD LAFLEW WOODRUFF
Appeal by Defendant from judgment entered 12 March 2013 by
Judge W. Erwin Spainhour in Superior Court, Rowan County. Heard
in the Court of Appeals 10 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Phyllis Tranchese, for the State.
Peter Wood for Defendant.
McGEE, Judge.
Ronald Laflew Woodruff (“Defendant”) was charged with
violating a domestic violence protective order on 8 July 2012.
A jury found Defendant guilty of violating a domestic violence
protective order on 12 March 2013. Defendant appeals.
Defendant argues the trial court erred in denying his
motion to dismiss. Defendant contends his motion to dismiss
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“should have been granted on two grounds.” The first ground is
based on double jeopardy, and the second involves willfulness.
I. Double Jeopardy
A. Preservation of the Issue for Review
Preliminarily, we must address the issue of preservation.
“The procedure required in criminal trials to assert a double
jeopardy defense is well established[.]” State v. McKenzie, 292
N.C. 170, 175, 232 S.E.2d 424, 428 (1977). If the defendant “is
to take advantage of [the double jeopardy defense] on appeal, he
must first properly raise it before the trial court. Failure to
do so precludes reliance on the defense on appeal.” McKenzie,
292 N.C. at 175, 232 S.E.2d at 428; see also State v. Roope, 130
N.C. App. 356, 362-63, 503 S.E.2d 118, 123 (1998).
“The rule that constitutional questions must be raised
first in the trial court is based upon the reasoning that the
trial court should, in the first instance, pass[] on the issue.”
State v. Kirkwood, ___ N.C. App. ___, ___, 747 S.E.2d 730, 737
(2013) (internal quotation marks omitted). “[D]ouble jeopardy
protection may not be raised on appeal unless the defense and
the facts underlying it are brought first to the attention of
the trial court.” McKenzie, 292 N.C. App. at 176, 232 S.E.2d at
428.
Defendant moved to dismiss at the close of the State’s
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evidence, but offered no argument in support of his motion.
Defendant renewed his motion to dismiss at the close of all
evidence. Defendant again offered no argument in support of his
motion. Our review of the transcript reveals no explicit
mention of double jeopardy.
The only possible implicit reference to double jeopardy
came after the trial court denied Defendant’s motions to
dismiss. During discussions on jury instructions, the following
exchange occurred:
[Defense Attorney]: I would also point out
to the Court that when this case was tried
in district court, the judge found him not
guilty of assault on a female.
THE COURT: Well, I know, but that’s not
binding on this Court and she has testified
that he assaulted her on that occasion, so -
-
[Defense Attorney]: Right.
THE COURT: -- that’s the evidence I have to
take in the light most favorable to the
state at this point.
Since the transcript suggests the trial court possibly addressed
and ruled upon a double jeopardy issue, albeit after the denial
of Defendant’s motions to dismiss, we assume arguendo that the
issue of double jeopardy is preserved for our review.
B. Analysis of the Merits
Defendant contends that, once the district court found
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Defendant “not guilty of the underlying assault on a female,
even if separately charged, no court could reconsider the
assault as an element of another crime.” Defendant cites
McKenzie, supra, for support.
In McKenzie, the issue was “whether on a prosecution in
superior court for involuntary manslaughter arising from an
automobile accident, the [S]tate may rely on [the] defendant’s
driving while under the influence of intoxicants . . . when
[the] defendant had been earlier acquitted of this offense in
the district court.” McKenzie, 292 N.C. at 171-72, 232 S.E.2d
at 426.
The Double Jeopardy Clause entitles “defendants in state
criminal proceedings to the benefit of the collateral estoppel
doctrine.” Id. at 174, 232 S.E.2d at 427 (citing Ashe v.
Swenson, 397 U.S. 436, 25 L. Ed. 2d 469 (1970)). Collateral
estoppel “means simply that when an issue of ultimate fact has
once been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any future
lawsuit.” McKenzie, 292 N.C. at 174, 232 S.E.2d at 427-28.
“[T]he acquittal of a defendant even in district court
precludes the state from relitigating in a subsequent
prosecution any issue necessarily decided in favor of the
defendant in the former acquittal.” Id. at 175, 232 S.E.2d at
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428. Determining whether the issue in question was necessarily
decided in favor of the defendant “may require an examination of
the entire record of the earlier proceeding.” Id.
In the present case, the magistrate’s order alleges
Defendant violated a valid protective order on three grounds:
(1) by “assaulting the plaintiff[,]” (2) by “harassing the
plaintiff by taking video of her on her property[,]” and (3) by
“going to/around the plaintiff residence.” Even assuming that
“assaulting the plaintiff” is tantamount to the criminal offense
of assault on a female, Defendant fails to show that “assaulting
the plaintiff” formed the basis of his conviction for violating
a domestic violence protective order. The district court
judgment indicates no particular ground.
Furthermore, the district court judgment indicates only
that Defendant was found guilty of violation of a domestic
violence protective order. The record does not show Defendant
was found not guilty of assault on a female in district court.
We cannot determine whether the district court made a decision
on the issue of “assaulting the plaintiff” or “assault on a
female” at all.
“Defendant has the burden of demonstrating that the issue
he seeks to foreclose from relitigation was actually decided in
the previous proceeding.” State v. Carter, 357 N.C. 345, 355-
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56, 584 S.E.2d 792, 800 (2003) (citing McKenzie, 292 N.C. at
175, 232 S.E.2d at 428). As discussed above, Defendant has not
shown that the issue he seeks to foreclose (“assault on a
female”) was actually decided in district court, or that the
issue was decided again in superior court. Defendant has thus
failed to show error on this basis.
II. Willfulness
Again, we must first address the issue of preservation.
Defendant argues the trial court erred in denying his motion to
dismiss because there was no evidence of Defendant’s
willfulness. However, Defendant did not strive to preserve this
argument for review. “In order to preserve an issue for
appellate review, a party must have presented to the trial court
a timely request, objection, or motion, stating the specific
grounds for the ruling the party desired the court to make if
the specific grounds were not apparent from the context.”
N.C.R. App. P. 10 (a)(1).
In State v. Curry, 203 N.C. App. 375, 385, 692 S.E.2d 129,
137-38 (2010), the defendant argued at trial that the possession
of a firearm by a felon charge should be dismissed because the
State showed only that the defendant was charged with assault
with a deadly weapon inflicting serious injury. However, on
appeal, the defendant sought to argue that there was a variance
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between his indictment and the evidence presented at trial. Id.
at 385, 692 S.E.2d at 138. This Court held that the defendant
waived the issue. Id. at 385-86, 692 S.E.2d at 138 (citing
State v. Tellez, 200 N.C. App. 517, 521, 684 S.E.2d 733, 736
(2009)).
In the present case, the transcript shows Defendant made no
argument at all in support of his motions to dismiss. We
addressed Defendant’s double jeopardy argument in Section I.B.,
because the transcript suggested that the trial court addressed
a possible double jeopardy issue, albeit after the denial of
Defendant’s motions to dismiss. Because we assumed the double
jeopardy argument was preserved in spite of the total lack of
argument supporting Defendant’s motions to dismiss, we decline
to assume that this issue is preserved as well. It is well-
established that “the law does not permit parties to swap horses
between courts in order to get a better mount in the appellate
courts.” Tellez, 200 N.C. App. at 521, 684 S.E.2d at 736. In
accordance with N.C.R. App. P. 10(a)(1), Curry, and Tellez, we
decline to address the issue of willfulness.
No error.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).