State v. Tucker

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-15

No. 385PA20

Filed 11 February 2022

STATE OF NORTH CAROLINA

v.
MITCHELL ANDREW TUCKER

On discretionary review pursuant to N.C.G.S. § 7A-31 of a divided decision of

the Court of Appeals, 273 N.C. App. 174 (2020), reversing in part and vacating in part

judgments entered on 30 May 2018 by Judge Jesse B. Caldwell III in Superior Court,

Mecklenburg County. Heard in the Supreme Court on 9 November 2021.

Joshua H. Stein, Attorney General, by Bethany A. Burgon, Assistant Attorney
General, for the State-appellant.

Guy J. Loranger for defendant-appellee.

BARRINGER, Justice.

¶1 In this matter, we consider whether the Court of Appeals erred by reversing

several of defendant’s convictions for insufficient evidence. After careful review, we

conclude the Court of Appeals erred. Thus, we reverse the decision of the Court of

Appeals.

I. Procedural Background

¶2 Defendant was indicted by a grand jury for violating a civil domestic violence

protective order while in possession of a deadly weapon, felonious breaking or
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entering, assault with a deadly weapon, and assault on a female. The grand jury

subsequently indicted defendant for the status offenses of habitual breaking and

entering and habitual felon.

¶3 During trial, defendant twice moved to dismiss the charges relating to the

violation of the civil domestic violence protective order. Defendant argued that the

State had failed to prove that defendant had knowledge of the 6 September 2017

domestic violence protective order (6 September 2017 DVPO) in effect at the time of

the alleged crimes. The trial court denied the motions to dismiss.

¶4 The jury returned verdicts finding defendant guilty of violating a civil domestic

violence protective order while in possession of a deadly weapon, felonious breaking

or entering in violation of a valid domestic violence protective order, assault with a

deadly weapon, and assault on a female. Defendant pleaded guilty to attaining

habitual felon status, and the trial court dismissed the habitual breaking and

entering charge pursuant to the plea arrangement.

¶5 The trial court consolidated the convictions of violating a civil domestic

violence protective order while in possession of a deadly weapon, felonious breaking

or entering, and habitual felon and sentenced defendant to a minimum of 95 months

and a maximum of 126 months of imprisonment. The trial court separately sentenced

defendant to 60 days for assault with a deadly weapon and 30 days for assault on a

female, both to be served consecutive to the first sentence. All time was to be served
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in the custody of the North Carolina Department of Adult Correction and Juvenile

Justice.

¶6 Defendant appealed. On appeal, defendant presented two issues:

I. Did the trial court err by denying [defendant’s]
motion to dismiss the charge of violating a domestic
violence protective order while in possession of a deadly
weapon where the State failed to present evidence that
[defendant] had knowledge of the 6 September 2017
[DVPO]?

II. Did the trial court err or commit plain error in
violation of [defendant’s] right to a unanimous verdict by
instructing the jury that it could find him guilty of felony
breaking and entering based on one alternative theory of
guilt[ ]—[defendant] intended to commit a felony domestic
violence protective order violation—which the evidence
failed to support?

¶7 The Court of Appeals majority opinion concluded that the State “presented no

evidence that defendant received notice or was otherwise aware of the

[6 September 2017] DVPO.” State v. Tucker, 273 N.C. App. 174, 178 (2020). The Court

of Appeals viewed defendant’s statement—“I know” in response to the victim’s

statement, “I got a restraining order”1—to be “evidence” that “is simply too tenuous

1 This Court has ordered that State’s Exhibit 14 be added to the record on appeal,
pursuant to Rule 9(b)(5)(b) of the North Carolina Rules of Appellate Procedure. State’s
Exhibit 14 is the recording played to the jury capturing the exchange between the victim,
Pasquarella, and defendant. The recording is from the responding officer’s body camera. The
Court of Appeals used slightly different quotes in its opinion when describing the exchange,
State v. Tucker, 273 N.C. App. 174, 177–78 (2020), but the Court of Appeals does not appear
to have requested or had access to State’s Exhibit 14.
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to form a basis for a reasonable inference by the jury,” id. at 179. The Court of Appeals

therefore concluded that the trial court erred by “denying defendant’s motions to

dismiss the charge of violation of a protective order while in possession of a deadly

weapon, as the State failed to present sufficient evidence of defendant’s knowledge of

the [6 September 2017] DVPO.” Id. at 180.

¶8 Since the COA concluded that the State did not present sufficient evidence of

defendant’s knowledge of the 6 September 2017 DVPO, the Court of Appeals

additionally determined that the trial court plainly erred in permitting the jury to

convict defendant of felonious breaking or entering in violation of the

6 September 2017 DVPO. Id. at 180–81. The Court of Appeals thus reversed

defendant’s convictions for violation of a protective order while in possession of a

deadly weapon and felonious breaking or entering. Id. at 181. As these charges

formed the basis of defendant’s habitual felon plea, the Court of Appeals also vacated

the plea. Id.

¶9 The State petitioned for discretionary review pursuant to N.C.G.S. § 7A-31,

arguing that the Court of Appeals erred by reversing the aforementioned convictions

for insufficient evidence. This Court allowed discretionary review.

II. Standard of Review

¶ 10 “Whether the State presented substantial evidence of each essential element

of the offense is a question of law; therefore, we review the denial of a motion to
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dismiss de novo.” State v. Crockett, 368 N.C. 717, 720 (2016). The question for a court

on a motion to dismiss for insufficient evidence “is whether there is substantial

evidence (1) of each essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant’s being the perpetrator of such offense.” State

v. Powell, 299 N.C. 95, 98 (1980). “If so, the motion is properly denied.” Id. Substantial

evidence is the same as more than a scintilla of evidence. Id. at 99.

In reviewing challenges to the sufficiency of evidence, we
must view the evidence in the light most favorable to the
State, giving the State the benefit of all reasonable
inferences. Contradictions and discrepancies do not
warrant dismissal of the case but are for the jury to resolve.
The test for sufficiency of the evidence is the same whether
the evidence is direct or circumstantial or both.
Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence
does not rule out every hypothesis of innocence. If the
evidence presented is circumstantial, the court must
consider whether a reasonable inference of defendant’s
guilt may be drawn from the circumstances. Once the court
decides that a reasonable inference of defendant’s guilt
may be drawn from the circumstances, then it is for the
jury to decide whether the facts, taken singly or in
combination, satisfy it beyond a reasonable doubt that the
defendant is actually guilty.

State v. Barnes, 334 N.C. 67, 75–76 (1993) (cleaned up). In making this

determination, a court “is to consider all evidence actually admitted, competent or

incompetent, which is favorable to the State, disregarding defendant’s evidence

unless favorable to the State.” State v. Baker, 338 N.C. 526, 558–59 (1994). “When

ruling on a motion to dismiss, the trial court should be concerned only about whether
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the evidence is sufficient for jury consideration, not about the weight of the evidence.”

State v. Fritsch, 351 N.C. 373, 379 (2000).

III. Analysis

¶ 11 To sustain a charge of violating a civil domestic violence protective order while

in possession of a deadly weapon, the State must present substantial evidence that a

defendant:

while in possession of a deadly weapon on or about his or
her person or within close proximity to his or her person,
knowingly violate[d] a valid protective order as provided in
subsection (a) of this section by failing to stay away from a
place, or a person, as so directed under the terms of the
order.

N.C.G.S. § 50B-4.1(g) (2021). In this matter, the valid protective order is the civil

domestic violence protective order entered on 6 September 2017.

¶ 12 Defendant argued before the trial court, the Court of Appeals, and now this

Court that the State failed to present substantial evidence of defendant’s

knowledge—namely, his knowledge of the 6 September 2017 DVPO. We disagree.

Under the well-established standard of review, substantial evidence existed from

which the jury could infer that defendant “knowingly violate[d]” the

6 September 2017 DVPO. See N.C.G.S. § 50B-4.1(g).

¶ 13 The State’s evidence at trial showed the following: Deanna Pasquarella and

defendant were girlfriend and boyfriend for about six- or seven-months. They were

both homeless when they met in 2016.
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¶ 14 In August 2017, Pasquarella applied for and obtained an ex parte domestic

violence protective order (ex parte DVPO) after defendant repeatedly struck her with

an umbrella as they were crossing the street at the Lynx light rail station. The ex

parte DVPO was effective until 6 September 2017. An employee of the Sheriff’s Office

Domestic Violence Enforcement Team read the ex parte DVPO to defendant;

answered defendant’s questions; and served defendant with the ex parte DVPO, the

civil summons, and the Notice of Hearing on Domestic Violence Protective Order. The

Notice states that the hearing would be held on 6 September 2017 at 1:30 p.m. in

Courtroom 4110, Mecklenburg County Courthouse, and “[a]t that hearing[,] it will be

determined whether the Order will be continued.”

¶ 15 At the 6 September 2017 hearing, Pasquarella obtained the 6 September 2017

DVPO. This DVPO was issued on 6 September 2017 and effective until

6 September 2018. Pasquarella attended the hearing, but defendant was not present.

¶ 16 On the morning of 7 September 2017, Pasquarella heard a knock on her

apartment door. She looked through the peephole on her door and saw that defendant

was there. Pasquarella called the police and locked herself in the closet. Defendant

broke a window in her apartment, climbed through the window into the apartment,

and opened the door to the closet where Pasquarella was hiding. Defendant grabbed

her cell phone and then started hitting her, punching her, and grabbing her by the

collar of her shirt. Eventually, he retrieved a knife from his backpack. Defendant then
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put the knife to Pasquarella’s throat and said, “I’m going to jail anyway. I might as

well kill you, bitch.”

¶ 17 The police officer responding to Pasquarella’s domestic violence call entered

the apartment through the front door and observed defendant on top of Pasquarella.

The police officer instructed defendant to get off Pasquarella. Defendant then started

repeating, “I’m going to jail.” The police officer then handcuffed defendant as

defendant stepped away from Pasquarella. Pasquarella shortly thereafter asked,

“Well, why’d you do it?” and defendant responded, “Why’d you do it?” Defendant later

said, “Man, I messed up.” Pasquarella stated, “I got a restraining order,” to which

defendant responded, “Yeah, I know you did.”

¶ 18 The State contends the Court of Appeals misapplied the standard of review

and erroneously analyzed the evidence in the light most favorable to defendant. We

agree that the Court of Appeals erred.

¶ 19 The Court of Appeals identified that a court must view the evidence in the light

most favorable to the State and resolve every reasonable inference in favor of the

State. Tucker, 273 N.C. App. at 177. Nonetheless, the Court of Appeals failed to follow

this standard. It initially ignored the State’s evidence of defendant’s statement, “I

know,” by concluding that “the State presented no evidence that defendant received

notice or was otherwise aware of the [6 September 2017] DVPO.” Id. at 178 (emphasis

added). Yet, the Court of Appeals then determined that defendant’s statement, “I
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know,” which the State argued showed defendant was aware of the second DVPO,

was “too tenuous to form a basis for a reasonable inference by the jury.” Id. at 179.

¶ 20 The State introduced, and the trial court allowed into evidence, the recording

from the responding officer’s body camera. The State then played for the jury the

recording. That recording captured Pasquarella saying, “I got a restraining order,”

and defendant responding, “Yeah, I know you did.” The State replayed the recording

for the trial court when defendant first moved to dismiss for insufficient evidence.

¶ 21 Defendant’s statement that he was aware of the existence of the DVPO was

evidence that could be viewed in different lights. However, the applicable standard of

review for a motion to dismiss for insufficient evidence requires a court to view the

evidence in the light most favorable to the State. Barnes, 334 N.C. at 75. Therefore,

the Court of Appeals was required to consider this evidence in the light most favorable

to the State when reviewing de novo the trial court’s denial of the motion to dismiss

for sufficiency of the evidence. The Court of Appeals erred by not viewing the evidence

in this light.

¶ 22 Defendant argued that his statement could refer to the ex parte DVPO, which

expired on 6 September 2017, Tucker, 273 N.C. App. at 178, and the Court of Appeals

adopted defendant’s view, ignoring other possible meanings of defendant’s

declaration, id. at 178. By determining that the State’s evidence was “too tenuous,”

id. at 178–79, the analysis by the Court of Appeals impermissibly focused on the
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weight, not the sufficiency, of the evidence. However, that was the task of the jury—

not the court. The proper application of the standard of review does not involve

weighing the evidence, Fritsch, 351 N.C. at 379, considering defendant’s evidence

that is not favorable to the State, Baker, 338 N.C. at 558–59, or contemplating what

evidence the State “should have presented,” State v. Miller, 363 N.C. 96, 100–01

(2009).

¶ 23 Applying the proper standard of review, we hold that the properly considered

evidence, taken in the light most favorable to the State, was sufficient to support a

determination that defendant “knowingly violate[d]” the 6 September 2017 DVPO.

See N.C.G.S. § 50B-4.1(g). Defendant’s statement, “I know,” in addition to his other

statements, conduct, and the timing of such conduct, supports this holding. The

existence of evidence that could support different inferences is not determinative of a

motion to dismiss for insufficient evidence. See Barnes, 334 N.C. at 75. The evidence

need only be sufficient to support a reasonable inference. See id.

IV. Conclusion

¶ 24 As we conclude that the Court of Appeals erred and that there is sufficient

evidence of defendant’s knowledge of the 6 September 2017 DVPO for his convictions,

we reverse the decision of the Court of Appeals. Accordingly, because we reverse the

Court of Appeals on the issue of defendant’s violation of the domestic violence

protective order, we reinstate defendant’s convictions that were reversed or vacated
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by the Court of Appeals—violating a civil domestic violence protective order while in

possession of a deadly weapon, felonious breaking or entering, and habitual felon.

REVERSED.