IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-990
Filed: 5 July 2017
Watauga County, No. 15 CRS 50271
STATE OF NORTH CAROLINA
v.
ROBERT JEROME COBB, Defendant, SURETY: ULONDA T. HILL, Bail Agent for
1st Atlantic Surety Company; JUDGMENT CREDITOR: WATAUGA COUNTY
BOARD OF EDUCATION.
Appeal by judgment creditor from order entered 6 July 2016 by Judge Gary M.
Gavenus in Watauga County Superior Court. Heard in the Court of Appeals 7 March
2017.
No brief was filed for Surety 1st Atlantic Surety Company.
Miller & Johnson, PLLC, by Nathan A. Miller, for Judgment Creditor Watauga
County Board of Education.
BRYANT, Judge.
Where the motion to set aside the forfeiture of an appearance bond did not
contain the required documentation to support any ground set forth in North
Carolina General Statutes, section 15A-544.5, the trial court lacked statutory
authority to set aside the forfeiture of the appearance bond. Accordingly, we vacate
the trial court’s order setting aside the forfeiture of the bond.
An appearance bond in the amount of $30,000.00 was placed for Robert Jerome
Cobb to appear in Watauga County Superior Court on 12 January 2016 on a felony
STATE V. COBB
Opinion of the Court
charge in case number 15 CRS 050271. Due to Cobb’s failure to appear, the
Honorable Gary M. Gavenus, Superior Court judge, ordered that Cobb’s $30,000.00
appearance bond in that case be forfeited. On 14 January 2016, a Deputy Clerk of
Watauga County Superior Court issued a bond forfeiture notice to Cobb, as well as to
1st Atlantic Surety Company via first-class mail. On 8 June 2016, Ulonda Hill, a bail
agent, moved the court to set aside the forfeiture. In the motion, which was filed on
form AOC-CR-213—a form with pre-set options and check boxes—Hill checked that
“defendant has been surrendered by a surety on the bail bond as provided by G.S.
15A-540, as evidenced on the attached ‘Surrender Of Defendant By Surety’ (AOC-CR-
214).” However, instead of a Form CR-214, attached to the motion was a printout
from the Automated Criminal/Infractions System (ACIS). On 14 June 2016, an
attorney for the school board filed an objection and notice of hearing. The hearing
was set for 5 July 2016. On 6 July 2016, the trial court entered an order finding “that
the moving party has established one or more of the reasons specified in G. S. 15A-
544.5 for setting aside the forfeiture. . . . The . . . Motion is allowed and the forfeiture
is set aside.” Judgment creditor Watauga County Board of Education (“the Board”)
appeals.
_______________________________________
On appeal, the Board argues that the trial court erred by finding that the
moving party established a reason for setting aside the bond forfeiture, pursuant to
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Opinion of the Court
N.C. Gen. Stat. § 15A-544.5. More specifically, the Board contends that by submitting
an ACIS printout rather than the required AOC-CR-214 form, the bail agent failed
to comply with section 15A-544.5 in seeking to aside the bond forfeiture. We agree in
part.
General Statutes Chapter 15A, Article 26, Part 2 governs bail bond forfeiture.
“By executing a bail bond the defendant and each surety submit to the jurisdiction of
the court. . . . The liability of the defendant and each surety may be enforced as
provided in this Part . . . .” N.C. Gen. Stat. § 15A-544.1 (2015). “If a defendant . . .
released . . . upon execution of a bail bond fails on any occasion to appear before the
court as required, the court shall enter a forfeiture for the amount of that bail bond .
. . .” Id. § 15A-544.3(a). “There shall be no relief from a forfeiture except as provided
in [section 15A-544.5].” Id. § 15A-544.5(a); see also State v. Williams, 218 N.C. App.
450, 451, 725 S.E.2d 7, 9 (2012) (holding where forfeiture of an appearance bond has
not become a final judgment, G.S. § 15A-544.5 offers “[t]he exclusive avenue for
relief”); State v. Sanchez, 175 N.C. App. 214, 623 S.E.2d 780 (2005) (holding the trial
court lacked authority to grant the surety’s motion to set aside forfeiture of an
appearance bond where the motion was not premised on any ground set forth in G.S.
§ 15A-544.5).
Pursuant to subsection (b) of General Statutes, section 15A-544.5,
Except as provided by subsection (f)[ (which is not
applicable here)] . . . a forfeiture shall be set aside for any
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STATE V. COBB
Opinion of the Court
one of the following reasons, and none other:
(1) The defendant’s failure to appear has been set aside by
the court and any order for arrest issued for that failure to
appear has been recalled, as evidenced by a copy of an
official court record, including an electronic record.
(2) All charges for which the defendant was bonded to
appear have been finally disposed by the court other than
by the State’s taking dismissal with leave, as evidenced by
a copy of an official court record, including an electronic
record.
(3) The defendant has been surrendered by a surety on the
bail bond as provided by G.S. 15A-540, as evidenced by the
sheriff’s receipt provided for in that section.
(4) The defendant has been served with an Order for Arrest
for the Failure to Appear on the criminal charge in the case
in question as evidenced by a copy of an official court
record, including an electronic record.
(5) The defendant died before or within the period between
the forfeiture and the final judgment as demonstrated by
the presentation of a death certificate.
(6) The defendant was incarcerated in a unit of the Division
of Adult Correction of the Department of Public Safety and
is serving a sentence or in a unit of the Federal Bureau of
Prisons located within the borders of the State at the time
of the failure to appear as evidenced by a copy of an official
court record or a copy of a document from the Division of
Adult Correction of the Department of Public Safety or
Federal Bureau of Prisons, including an electronic record.
(7) The defendant was incarcerated in a local, state, or
federal detention center, jail, or prison located anywhere
within the borders of the United States at the time of the
failure to appear, and the district attorney for the county
in which the charges are pending was notified of the
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STATE V. COBB
Opinion of the Court
defendant’s incarceration while the defendant was still
incarcerated and the defendant remains incarcerated for a
period of 10 days following the district attorney's receipt of
notice, as evidenced by a copy of the written notice served
on the district attorney via hand delivery or certified mail
and written documentation of date upon which the
defendant was released from incarceration, if the
defendant was released prior to the time the motion to set
aside was filed.
N.C.G.S. § 15A-544.5(b) (emphasis added). Within 150 days of the notice of forfeiture
being given, the defendant, surety, professional bondsman, or bail agent may move
for the bond forfeiture to be set aside. “[A] written motion shall state the reason for
the motion and attach to the motion the evidence specified in subsection (b) of this
section.” Id. § 15A-544.5(d)(1).
The record before us indicates that the bail agent moved to set aside the bond
forfeiture on the ground that “defendant has been surrendered by a surety on the bail
bond as provided by G.S. 15A-540, as evidenced by the attached ‘Surrender of
Defendant By Surety’ (AOC-CR-214)” (ground (b)(3) under section 15A-544.5).
However, no AOC form 214 was attached to the motion. Instead, attached to the
motion was an ACIS printout indicating that defendant had been charged with a
traffic offense, driving while license revoked, on 18 May 2015 and that the disposition
date was 18 May 2016. The ACIS printout reflected that the traffic charge was
assigned Watauga case number 15 CR 00508, that defendant pled guilty to the charge
on 18 May 2016, and that, as part of the disposition, defendant agreed to plead guilty
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STATE V. COBB
Opinion of the Court
in Watauga case number 14 CRS 50747. The ACIS printout included no reference to
case number 15 CRS 050271, the case in which the bond was forfeited. The ACIS
printout did not indicate that defendant was taken into custody or had been
surrendered to a sheriff or other agency official authorized to arrest individuals.
The issue now before us is whether the trial court erred by setting aside the
bond forfeiture where the record reflects only the ACIS statement as evidence
“defendant has been surrendered by a surety on the bail bond,” in lieu of a sheriff’s
receipt.1 See id. § 15A-544.5(b)(3). We hold the ACIS statement in the instant case
did not meet the requirement of a sheriff’s receipt contemplated by the statute; i.e.,
evidence defendant was surrendered by a surety on the bail bond. We note that bail
agent Hill’s motion to set aside the forfeiture of an appearance bond was premised on
section 15A-544.5(b)(3), but where the facts of record do not support the asserted
ground for the motion or any other ground set forth in subsection (b), we see no basis
on this record for the trial court to exercise statutory authority to set aside the bond
forfeiture.
The dissenting opinion asserts that because “there is no evidence upon which
to assess the validity of the trial court’s ruling, we should not presume that the trial
1 The Board argues that the failure to attach the specific form AOC-CR-214 as evidence of
surrender to the sheriff by a surety amounts to a failure to meet the statutory requirement of a sheriff’s
receipt set out in section 15A-544.5(b)(3). However, we need not reach this specific issue to resolve the
matter before us. See Hayes v. City of Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 682 (1956) (“In
every case what is actually decided is the law applicable to the particular facts; all other legal
conclusions therein are but obiter dicta.”).
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STATE V. COBB
Opinion of the Court
court erred but should instead affirm the trial court’s order.” In particular, the
dissent cites Phelps v. McCotter, 252 N.C. 66, 67, 112 S.E.2d 736, 737 (1960) (per
curiam), for the “well established principle that there is a presumption in favor of the
regularity and validity of the proceedings in the lower court”; King v. King, 146 N.C.
App. 442, 445–46, 552 S.E.2d 262, 265 (2001) (“[I]t is generally the appellant’s duty
and responsibility to see that the record is in proper form and complete and this Court
will not presume error by the trial court when none appears on the record to this
Court.” (emphasis added) (citation omitted); and Granville Med. Ctr. v. Tipton, 160
N.C. App. 484, 488–89, 586 S.E.2d 791, 795 (2003) (stating that “[w]here the record
is silent on a particular point, we presume that the trial court acted correctly,” then
holding this Court would not presume the trial court erred by applying an incorrect
legal standard where the record was silent as to which standard the lower court
applied). We note In re A.R.H.B., for the proposition that “[u]nless the record reveals
otherwise, we presume that judicial acts and duties have been duly and regularly
performed.” 186 N.C. App. 211, 219, 651 S.E.2d 247, 253 (2007) (citation omitted).
However, here, the record is not silent; the record reflects only error. For that reason,
King, Phelps, Granville, and A.R.H.B. are distinguishable.
The dissenting opinion points out that the record before this Court does not
include a transcript or a Rule 9(a) narration of any proceedings before the trial court.
The majority does acknowledge herein that as the appellant, the Board of Education
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STATE V. COBB
Opinion of the Court
had a duty to provide a complete record and that failure to do so should be met with
strong disapproval. However, appellant Board compiled a proposed record on appeal,
and when the time for response to appellant Board’s proposed record expired without
comment from the surety, the record was settled by operation of the Rules of
Appellate Procedure. Thereafter, only appellant Board filed a brief in this matter.
The record as submitted by appellant Board shows error on its face. Unlike
the dissent, we will not speculate on what if anything else may have occurred before
the trial court. See Joines v. Moffitt, 226 N.C. App. 61, 67, 739 S.E.2d 177, 182 (2013)
(stating that “[a]ppellate review is based solely upon the record on appeal; it is the
duty of the appellant[] to see that the record is complete. This Court will not engage
in speculation as to what arguments may have been presented . . . .” (alteration in
original) (citation omitted)). This record as reviewed on appeal and argued by
appellant, contains documentary evidence which, on its face, does not support the
ruling of the trial court. The evidence of record shows the bail agent presented to the
court a printout showing that defendant had been charged with a misdemeanor traffic
offense on 18 May 2015, almost eight months prior to his failure to appear on 12
January 2016. Further, the printout did not reflect that defendant had been
incarcerated on 12 January 2016 or at any subsequent time up to the date of the bond
hearing. Thus, based on this record, error does appear and we cannot presume the
court acted in accordance with statutory authority. Cf. In re A.R.H.B., 186 N.C. App.
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STATE V. COBB
Opinion of the Court
at 219, 651 S.E.2d at 253 (“Unless the record reveals otherwise, we presume that
judicial acts and duties have been duly and regularly performed.” (citation omitted)).
This record supports a conclusion, not a presumption, that the trial court erred, as
there is not sufficient basis in the record to warrant the exercise of statutory authority
to set aside a bond forfeiture. Accordingly, the trial court’s 6 July 2016 order allowing
the bail agent’s motion to set aside the bond forfeiture is
VACATED.
Judge INMAN concurs.
Judge ZACHARY dissents with a separate opinion.
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No. COA16-990 - State v. Cobb
Judge ZACHARY, dissenting
The majority opinion holds that the motion filed by 1st Atlantic Surety
Company (“the surety”) to set aside the forfeiture of an appearance bond “was not
premised upon any ground set out under [N.C. Gen. Stat. §] 15A-544.5” and that, as
a result, “the trial court lacked statutory authority to set aside the forfeiture of the
appearance bond.” The surety’s original motion was explicitly based upon N.C. Gen.
Stat. § 15A-544.5(b)(3) (2015), which allows a surety to apply to have a bond forfeiture
set aside on the grounds that “[t]he defendant has been surrendered by a surety on
the bail bond as provided by G.S. 15A-540, as evidenced by the sheriff’s receipt
provided for in that section.” Therefore, the issue litigated at the hearing before the
trial court was not whether the surety’s motion to set aside the bond forfeiture was
premised upon an authorized basis, but whether the surety properly supported its
motion by producing the appropriate documentation.
The record establishes that Robert Cobb was charged with an unspecified
criminal offense in Watauga County File No. 15 CRS 50271, and that a secured
appearance bond was set at $30,000, for which the surety posted bond for Mr. Cobb.
Mr. Cobb failed to appear in court on the scheduled trial date of 12 January 2016,
and on 14 January 2016 forfeiture of the bond was ordered and the surety was
notified. On 8 June 2016, the surety moved to have the bond forfeiture set aside.
Upon the objection of the Watauga County Board of Education (“appellant”) to the
surety’s motion to set aside the forfeiture of the bond, a hearing on the surety’s motion
was conducted by the Honorable Gary M. Gavenus of the Superior Court of Watauga
STATE V. COBB
Zachary, J., dissenting
County. The appellant has appealed from an order of the trial court ruling that the
surety had established the existence of one or more statutorily-permissible reasons
for setting aside the bond forfeiture. The question before this Court is whether this
order was supported by evidence adduced at the hearing conducted by the trial court.
However, the record on appeal does not include any information concerning the
testimony, evidence, or arguments presented at that hearing. Given the complete
absence of any record of the evidence presented to the trial court, any conclusion
reached by this Court regarding the merits of the trial court’s order will, of necessity,
be based upon assumption or speculation. That is, we can either presume that the
trial court acted correctly, or presume that the court erred. It is a long-standing rule
of our appellate courts that we do not presume error upon a silent record. “In State
v. Fennell, 307 N.C. 258, 262, 297 S.E.2d 393, 396 (1982), this Court noted the
presumption of regularity in a trial, stating that ‘where the record is silent on a
particular point, it will be presumed that the trial court acted correctly.’ ” State v.
Thomas, 344 N.C. 639, 646, 477 S.E.2d 450, 453 (1996). Because the majority’s
holding is based upon the presumption that the trial court erred, I must respectfully
dissent.
It is undisputed that “[i]n North Carolina, forfeiture of an appearance bond is
controlled by statute.” State v. Robertson, 166 N.C. App. 669, 670, 603 S.E.2d 400,
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STATE V. COBB
Zachary, J., dissenting
401 (2004). “If a defendant who was released . . . upon execution of a bail bond fails
on any occasion to appear before the court as required, the court shall enter a
forfeiture for the amount of that bail bond in favor of the State against the defendant
and against each surety on the bail bond.” G.S. § 15A-544.3(a) (2015). “The exclusive
avenue for relief from forfeiture of an appearance bond . . . is provided in G.S. § 15A-
544.5. The reasons for setting aside a forfeiture are those specified in subsection (b)[.]”
Robertson, 166 N.C. App. at 670-71, 603 S.E.2d at 401. N.C. Gen. Stat. § 15A-544.5
“clearly states that ‘there shall be no relief from a forfeiture’ except as provided in the
statute, and that a forfeiture ‘shall be set aside for any one of the [reasons set forth
in Section (b)(1-7)], and none other.’ ” State v. Sanchez, 175 N.C. App. 214, 218, 623
S.E.2d 780, 782 (2005).
N.C. Gen. Stat. § 15A-544.5 provides in relevant part that the procedure
governing a surety’s request to have a bond forfeiture set aside is as follows:
(1) . . . [A]ny of the following parties on a bail bond may
make a written motion that the forfeiture be set aside: . . .
Any surety. . . . The written motion shall state the reason
for the motion and attach to the motion the evidence
specified in subsection (b) of this section.
(2) The motion shall be filed in the office of the clerk of
superior court[.] . . . The moving party shall, under G.S. 1A-
1, Rule 5, serve a copy of the motion on the district attorney
for that county and on the attorney for the county board of
education.
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STATE V. COBB
Zachary, J., dissenting
(3) Either the district attorney or the county board of
education may object to the motion by filing a written
objection in the office of the clerk and serving a copy on the
moving party.
(4) If neither the district attorney nor the attorney for the
board of education has filed a written objection to the
motion by the twentieth day after a copy of the motion is
served by the moving party . . . the clerk shall enter an
order setting aside the forfeiture, regardless of the basis for
relief asserted in the motion, the evidence attached, or the
absence of either.
(5) If either the district attorney or the county board of
education files a written objection to the motion, then . . . a
hearing on the motion and objection shall be held in the
county, in the trial division in which the defendant was
bonded to appear.
(6) If at the hearing the court allows the motion, the court
shall enter an order setting aside the forfeiture.
(7) If at the hearing the court does not enter an order
setting aside the forfeiture, the forfeiture shall become a
final judgment of forfeiture[.]
(8) If at the hearing the court determines that the motion
to set aside was not signed or that the documentation
required to be attached pursuant to subdivision (1) of this
subsection is fraudulent or was not attached to the motion
at the time the motion was filed, the court may order
monetary sanctions against the surety filing the motion,
unless the court also finds that the failure to sign the
motion or attach the required documentation was
unintentional. . . .
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STATE V. COBB
Zachary, J., dissenting
“The standard of review on appeal where a trial court sits without a jury 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.” State v. Lazaro, 190
N.C. App. 670, 660 S.E.2d 618 (2008) (citation omitted). N.C. Gen. Stat. § 15A-
544.5(h) states that an “order on a motion to set aside a forfeiture is a final order or
judgment of the trial court for purposes of appeal. Appeal is the same as provided for
appeals in civil actions.” Accordingly, this Court has reviewed appeals from a trial
court’s ruling on a motion to set aside a bond forfeiture in the same manner as other
orders or judgments entered in a bench trial.
For example, in Lazaro, the surety moved to have the bond forfeiture set aside
on the grounds that the defendant had failed to appear in court because he was
incarcerated in a state or federal prison, which is listed in N.C. Gen. Stat. § 15A-
544.5(b)(6) as a permissible basis to have a bond forfeiture set aside. On appeal, the
Board of Education argued that the “surety’s evidence does not support a finding that
the defendant was incarcerated . . . within the borders of North Carolina at the time
of his failure to appear on 7 November 2006.” Lazaro, 190 N.C. App. at 671, 660
S.E.2d at 619. We reviewed the evidence that the surety had proffered, which
consisted of “computer printouts of inmate records from the Mecklenburg County
Sheriff’s Office[.]” Lazaro at 673, 660 S.E.2d at 620. Based upon the evidence offered
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STATE V. COBB
Zachary, J., dissenting
at the hearing, we concluded that “the trial court’s findings were not supported by
competent evidence” given that “[t]he surety presented no additional evidence other
than the printouts.” Id.
Similarly, in State v. Belton, 169 N.C. App. 350, 610 S.E.2d 283 (2005), the
surety moved to set aside a final judgment of forfeiture, on the grounds that the
surety had never been given notice of the forfeiture. At the hearing, the surety
produced an affidavit from its employee which “tended to show that [the] surety did
not receive the notice of forfeiture[.]” Belton, 169 N.C. App. at 357, 610 S.E.2d at 288.
Other testimony was offered by an Assistant Clerk of Court, who testified in detail
concerning the practices of the Clerk’s office with regard to mailing notices of
forfeiture. We held that the trial court, “after considering [the surety’s affidavit]
along with the other evidence in the record, could properly conclude that the clerk
had given notice[.]” Id. Thus, in our review of appeals from a trial court’s ruling on
a motion to set aside a bond forfeiture, as in all other appeals from a bench trial, we
review whether the evidence supported the trial court’s findings and whether these
findings supported its conclusions of law.
In this case, the surety filed a motion to set aside the bond forfeiture on 8 June
2016 using an Administrative Office of the Courts (AOC) Form AOC-CR-213, on
which the surety indicated that it sought to have the bond forfeiture set aside on the
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STATE V. COBB
Zachary, J., dissenting
grounds that “[t]he defendant has been surrendered by a surety on the bail bond as
provided by G.S. 15A-540, as evidenced by the attached Surrender of Defendant by
Surety (AOC-CR-214).” The surety attached to the motion a computer printout from
the Watauga County Sheriff’s Office, referred to as an ACIS form. The majority holds
that the surety’s use of an ACIS form did not satisfy the requirement of N.C. Gen.
Stat. § 15A-544.5(b)(3) that the surety produce a “sheriff’s receipt.” Examination of
the attachment submitted by the surety reveals that it references two Watauga
County criminal cases, identified as Files Nos. 15 CR 508 and 14 CRS 50747. The
form does not, however, contain information about the disposition of the offense
charged in File No. 15 CRS 50271, which is the subject of the present appeal. As a
result, regardless of whether an ACIS form might, as a general proposition, satisfy
the requirement that a surety attach a “sheriff’s receipt” to a motion to have a bond
forfeiture set aside, it appears that the specific ACIS form submitted in this case
would not establish that Mr. Cobb had been surrendered to the sheriff with respect
to File No. 15 CRS 50271.
However, the holding that the trial court erred by setting aside the bond
forfeiture is based exclusively upon the documentation that the surety attached to
the motion that was submitted to the clerk of court. On the facts of this case, we
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STATE V. COBB
Zachary, J., dissenting
should not reach the issue of whether an ACIS form might meet the definition of a
sheriff’s receipt.
On 14 June 2016, the appellant filed its objection to the surety’s motion, and a
hearing was scheduled for 5 July 2016. The matter was heard by Judge Gavenus in
Watauga County Superior Court on 5 July 2016. On 6 July 2016, Judge Gavenus
entered an order allowing the surety’s motion and setting aside the bond forfeiture,
based upon a finding and conclusion that:
Upon due notice, a hearing was held on the above Objection
to the Motion To Set Aside Forfeiture. The Court finds on
the “Date of Bond” shown on the reverse the moving party
named above executed a bond for the defendant’s
appearance in the case(s) identified[.] . . . On the “Failure
to Appear” date shown on the reverse, the defendant failed
to appear to answer the charges in the case(s), and
forfeiture of the bond was entered on that date. Notice of
forfeiture was mailed to the moving party[.] . . .
The Court finds . . . that the moving party has established
one or more of the reasons specified in [N.C. Gen. Stat. §]
15A-544.5 for setting aside that forfeiture. . . . The above
Motion is allowed and the forfeiture is set aside.
(emphasis added).
As discussed above, the only relevant issue before this Court is whether the
trial court’s order was properly entered in light of the evidence adduced at the
hearing. The propriety of the trial court’s order cannot be determined merely by
review of the documentation that the surety attached to its motion, because the trial
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STATE V. COBB
Zachary, J., dissenting
court’s order was entered following a hearing at which the parties would have been
allowed to present additional testimony or evidence.
This Court has often held that “ ‘[i]t is the appellant’s duty and responsibility
to see that the record is in proper form and complete.’ ” State v. Williamson, 220 N.C.
App. 512, 516, 727 S.E.2d 358, 361 (2012) (quoting State v. Alston, 307 N.C. 321, 341,
298 S.E.2d 631, 644 (1983)). There are several ways in which the appellant might
have created a record of the hearing before the trial court. The clearest record is often
established by a transcript of the proceedings. In the event that a transcript is
unavailable, N.C. R. App. P. 9(c)(1) (2015) permits a party to prepare a narration of
the proceedings. In the course of settling the record on appeal, pursuant to N.C. R.
App. P. 11 (2015), the appellant might have submitted an affidavit from the
appellant’s trial counsel regarding the evidence that the surety submitted at the
hearing, or if the parties agreed on the evidentiary history of this matter, they might
have stipulated to the identity of the documents or testimony offered at the hearing.
Alternatively, the appellant might have filed a motion pursuant to N.C. Gen. Stat. §
1A-1, Rule 52(b) (2015), asking the court to “amend its findings or make additional
findings[.]”
Unfortunately, in this case the appellate record does not contain any indication
of the evidence or testimony offered at the hearing in addition to, or instead of, the
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STATE V. COBB
Zachary, J., dissenting
ACIS statement attached to the surety’s motion. The record fails to include a
transcript of the hearing conducted by the trial court, a reconstruction by the parties
of the events that transpired at the hearing, an affidavit attesting to the testimony
and documentary evidence proffered before the trial court, or any other evidence from
which we might determine what evidence was presented by the parties at the
hearing.
“[I]t is generally the appellant’s duty and responsibility to see that the record
is in proper form and complete and this Court will not presume error by the trial court
when none appears on the record to this Court.” King v. King, 146 N.C. 442, 445-46,
552 S.E.2d 262, 264 (2001) (internal quotation omitted). Instead, “[w]here the record
is silent on a particular point, we presume that the trial court acted correctly.”
Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 488-89, 586 S.E.2d 791, 795 (2003)
(citing State v. Reaves, 132 N.C. App. 615, 620, 513 S.E.2d 562, 565 (1999)). See also
Phelps v. McCotter, 252 N.C. 66, 67, 112 S.E.2d 736, 737 (1960) (noting the “well
established principle that there is a presumption in favor of the regularity and
validity of the proceedings in the lower court”).
The majority opinion states that the “record as submitted by appellant Board
shows error on its face.” In fact, the record provides nothing regarding the only
pertinent question, which is the evidence provided by the surety at the hearing before
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STATE V. COBB
Zachary, J., dissenting
the trial court. “ ‘The longstanding rule is that there is a presumption in favor of
regularity and correctness in proceedings in the trial court, with the burden on the
appellant to show error.’ Unless the record reveals otherwise, we presume ‘that
judicial acts and duties have been duly and regularly performed.’ ” In re A.R.H.B.,
186 N.C. App. 211, 219, 651 S.E.2d 247, 253 (2007) (quoting L. Harvey & Son Co. v.
Jarman, 76 N.C. App. 191, 195-96, 333 S.E.2d 47, 50 (1985), and Lovett v. Stone, 239
N.C. 206, 212, 79 S.E.2d 479, 483 (1954)). The majority holds that the documentation
provided by the surety to the clerk requires a “conclusion, not a presumption” that
the trial court erred. This conclusion ignores the crucial fact that we are not
reviewing a determination by the clerk of court, but by the trial court following a
hearing at which the parties had an opportunity to offer testimony and documentary
evidence. It is impossible for us to reach a conclusion on the validity of the trial
court’s order without a record of what transpired at the hearing.
In the absence of any record of the proceedings before the trial court, this Court
should follow the well-established rule and should not presume that the trial court
erred. I believe that because there is no evidence upon which to assess the validity
of the trial court’s ruling, we should not presume that the trial court erred but should
instead affirm the trial court’s order. For this reason, I must respectfully dissent.
-11-
State v. CobbÂ
Court: Court of Appeals of North Carolina
Date filed: 2017-07-05
Citations: 803 S.E.2d 176, 254 N.C. App. 317
Copy CitationsCombined Opinion