                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-1423

                                   Filed: 3 July 2018

Robeson County, No. 16CRS2457

STATE OF NORTH CAROLINA

               v.

WILLIAM OSCAR BAKER, Defendant.


         Appeal by defendant from order entered 6 June 2017 by Judge Robert F. Floyd,

Jr. in Robeson County Superior Court. Heard in the Court of Appeals 7 June 2018.


         Attorney General Joshua H. Stein, by Assistant Attorney General Kathryn H.
         Shields, for the State.

         Yoder Law PLLC, by Jason Christopher Yoder, for defendant-appellant.


         BERGER, Judge.


         On June 6, 2017, William Oscar Baker (“Defendant”) was held in criminal

contempt and sentenced to thirty days in jail in Robeson County Superior Court.

Defendant appeals, arguing the trial court erred in holding him in criminal contempt

and entering a civil judgment against him for reimbursement of court appointed

attorney fees. We affirm the part of the trial court’s order for criminal contempt, but

vacate the portion assessing attorney’s fees and remand for a new hearing on that

issue.

                          Factual and Procedural Background
                                    STATE V. BAKER

                                   Opinion of the Court



      On September 28, 2016, the matter of State v. McCormick (“the trial”) was

heard in Robeson County Superior Court in. Defendant, McCormick’s cousin, was

sitting in the audience. During the trial, an exchange occurred between a witness

and Defendant that interrupted the State’s direct examination of that witness. As a

result of this exchange, the trial court held a separate hearing outside the presence

of the jury to determine the cause of the interruption. The witness testified that

Defendant was shaking his head and making a gun gesture at him while he was on

the witness stand. After this hearing, the trial court ordered Defendant to show cause

for the interruption.

      On June 6, 2017, the trial court held a hearing on the order to show cause. The

State introduced two transcripts into evidence. The first transcript was a one-page

excerpt taken from the testimony of the witness during the trial.            The second

transcript reflected the additional interview with the witness taken after testimony

was over in the trial. Defendant objected to the transcripts as hearsay evidence, and

the trial court stated that it would receive the transcripts into evidence for the limited

purpose of “setting forth the circumstances in which the inquiry and the allegations

of the contemptuous act [were] made.”

      The State subsequently called three witnesses to testify to the events that

occurred in the courtroom on September 28, 2016. The evidence presented tended to

show that the witness became agitated on the stand and spoke to Defendant who was



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sitting in the courtroom behind the defense table. The witness told Defendant to stop

shaking his head. Defendant also made a gun gesture with his hand and mouthed

incomprehensible words towards the witness. The Assistant District Attorney was

present during the trial, and testified to the following at the show cause hearing:

             [Defendant] came in. I saw him move back to the second
             row, and then I could hear him talk—he was mumbling
             something. I couldn’t make out what. And then I noticed
             that the witness . . . was looking off in that direction, and
             it attracted my attention to [Defendant]. And I saw him
             nodding his head. It looked like he was mouthing
             something to the witness. Then I saw him make a gun with
             his hand and sort of put it up like this while he was
             gesturing and nodding his head towards [the witness].

             ....

             I saw him nodding his head and gesturing with his hands.
             And at one point—so [he] made what would look like a gun
             with his hand while he was—it looked like he was
             addressing [the witness] who was testifying.

      Defendant also testified at the hearing, acknowledging that he sat in the

second row during the trial on September 28, 2016. Defendant testified that he did

not make any gesture, but stated that he was twisting his dreadlocks and talking to

McCormick’s father during the trial. Defendant stated that he did not say anything

to the witness during the trial.

      The trial court then made the following findings of fact:

             During the trial of [State v. McCormick] the above
             Defendant was seen by a testifying state witness . . . to
             have made a hand gesture as to be pointing a gun to his
             head and shaking his head. Court was stopped and made

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                                  Opinion of the Court



              inquir[ies] from multipl[e] witnesses concerning the
              incident and issued a show cause order.

              A hearing was held this day and witnesses for the State
              and the defense testified as to the events of September 28,
              2016.

Further, the trial court found that “[d]uring [the witness’] testimony, the Defendant

did make the hand gesture as to be pointing a gun to his head, which disrupted the

court proceedings.”

       The trial court found Defendant to be in willful contempt of court, in violation

of N.C. Gen. Stat. § 5A-11(a)(1) and sentenced Defendant to thirty days in jail. The

trial court also entered a civil judgment for attorney’s fees and costs against

Defendant.    After judgment was entered, Defendant gave oral notice of appeal.

Defendant filed a petition for writ of certiorari on January 24, 2018 seeking a belated

appeal of the court’s imposition of the civil judgment.

                            Petition for Writ of Certiorari

       Defendant seeks review of the civil judgment of attorney’s fees and costs, but

acknowledges his appeal is untimely. Defendant relies on our recent case, State v.

Friend, ___ N.C. App. ___, 809 S.E.2d 902 (2018), arguing he did not have an

opportunity to be heard on the issue of attorney’s fees. We agree and grant his

petition for certiorari.

       “Certiorari is a discretionary writ, to be issued only for good and sufficient

cause shown.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (citation


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                                   Opinion of the Court



omitted), cert. denied, 362 U.S. 917, 4 L. Ed. 2d 738 (1960). It is well-established that

without proper notice of appeal, this Court does not acquire jurisdiction to review the

appeal.   State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320, appeal

dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005).

      In State v. Friend, the trial court did not inform the defendant of his right to

be heard on the issue of attorney’s fees and costs. Friend, ___ N.C. App. at ___, 809

S.E.2d at 907. Accordingly, this Court granted the defendant’s untimely appeal as to

the civil judgment. Id. Here, Defendant filed a belated appeal seven months after

his hearing. However, as illustrated below, this case is procedurally similar to State

v. Friend, and Defendant did not have the opportunity to be heard on the issue of

payment of attorney’s fees pursuant to N.C. Gen. Stat § 7A-455(b). Based on the facts

of the case sub judice, we grant Defendant’s petition for writ of certiorari to review

this issue on appeal under Rule 21(a). See N.C.R. App. P. 21(a).

                                  Standard of Review

      In contempt cases, the standard of review is “whether there is competent

evidence to support the trial court’s findings of fact and whether the findings support

the conclusions of law and ensuing judgment.” State v. Simon, 185 N.C. App. 247,

250, 648 S.E.2d 853, 855 (citation and quotation marks omitted), disc. review denied,

361 N.C. 702, 653 S.E.2d 158 (2007). In contempt proceedings, “the trial judge’s

findings of fact are conclusive when supported by any competent evidence and are



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                                 Opinion of the Court



reviewable only for the purpose of passing on their sufficiency.” State v. Coleman,

188 N.C. App. 144, 148, 655 S.E.2d 450, 453 (2008) (citation, quotation marks, and

ellipses omitted). Furthermore, the “trial court’s conclusions of law drawn from the

findings of fact are reviewable de novo.” Simon, 185 N.C. App. at 250, 648 S.E.2d at

855 (citation and quotation marks omitted).

                                     Analysis

      Defendant alleges the trial court erred because (1) there was no competent

evidence to support the trial court’s judgment of criminal contempt due to the trial

court admitting inadmissible hearsay, and (2) the trial court did not give Defendant

notice and an opportunity to be heard on the order for attorney’s fees pursuant to

N.C. Gen. Stat. § 7A-455(b). We address each argument in turn.

   I. Criminal Contempt

      Defendant contends the trial court erred because Defendant was found in

criminal contempt based upon inadmissible hearsay. We disagree.

      Section 5A-11(a)(1) states that criminal contempt is “[w]illful behavior

committed during the sitting of a court and directly tending to interrupt its

proceedings.” N.C. Gen. Stat. § 5A-11(a)(1) (2017). “[A] show cause order in a

criminal contempt proceeding is akin to an indictment, and the burden of proof

beyond a reasonable doubt that the alleged contemptuous acts occurred must be




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                                   Opinion of the Court



borne by the State.” Coleman, 188 N.C. App. at 150, 655 S.E.2d at 453-54 (citation

omitted).

      Hearsay “is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

N.C. Gen. Stat. § 8C-801(c) (2017). “It is well-settled that a witness’ prior consistent

statements are admissible to corroborate the witness’ sworn trial testimony.” State

v. McGraw, 137 N.C. App. 726, 730, 529 S.E.2d 493, 497 (citation omitted), disc.

review denied, 352 N.C. 360, 544 S.E.2d 554 (2000). Corroborative evidence “tends to

strengthen, confirm, or make more certain the testimony of another witness.” Id.

(citation and quotation marks omitted). “Corroborative evidence need not mirror the

testimony it seeks to corroborate, and may include new or additional information as

long as the new information tends to strengthen or add credibility to the testimony it

corroborates.” Id. (citation omitted).

      Here, the trial court allowed Exhibits 1 and 2 into evidence for the purpose of

explaining the context of the proceeding where Defendant’s actions occurred and to

corroborate the testimony of witnesses for the State. Exhibit 1 was used to illustrate

the context in which the incident with Defendant arose, as well as to corroborate

State testimony that the witness seemed agitated and distracted on the witness

stand, while Exhibit 2 was used to corroborate the Assistant District Attorney’s

testimony.   The Assistant District Attorney testified Defendant was inaudibly



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                                    STATE V. BAKER

                                   Opinion of the Court



speaking throughout the trial, facing the witness stand, and made a hand gesture in

the form of a gun while the witness was testifying, causing the interruption. Because

Exhibits 1 and 2 were used to corroborate the testimony of the State’s witnesses, and

were not offered into evidence to prove that Defendant was speaking and making a

gun gesture, the trial court did not err when admitting them into evidence.

      Defendant next contends that the trial court’s findings of fact did not support

the conclusion that Defendant’s conduct was willful as required under N.C. Gen. Stat.

§ 5A-11(a)(1). “Willfulness” under Section 5A-11(a)(1) is defined as “an act done

deliberately and purposefully in violation of law, and without authority, justification,

or excuse.” State v. Phair, 193 N.C. App. 591, 594, 668 S.E.2d 110, 112 (2008) (citation

and quotation marks omitted). Here, the trial court made the following finding:

             The [c]ourt finds that . . . [Defendant’s] willful behavior was
             committed during the sitting of court intended to interrupt
             the proceedings in that [Defendant] used two fingers and
             his thumb in the shape of a gun pointing at his own head
             or hand while looking directly at the witness testifying on
             stand and mouthing something thereby interrupting the
             testimony of the witness, . . . resulting in the witness
             ceasing in testifying and challenging . . . the defendant’s
             action on the stand in front of the jury.

      This finding of fact supports the trial court’s conclusion of law that Defendant

willfully interrupted the proceedings beyond a reasonable doubt. We hold that the

State presented sufficient evidence to support the trial court’s findings of fact, and

that those findings of fact, in turn, support the trial court’s conclusions of law.

Accordingly, the trial court did not err in holding Defendant in criminal contempt.

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                                     STATE V. BAKER

                                    Opinion of the Court



   II. Attorney’s Fees

         Defendant contends the trial court erred in entering a civil judgment against

him for attorney’s fees without first affording him an opportunity to be heard. We

agree.

         Section 7A-455(b) permits the trial court to enter a civil judgment against an

indignant defendant following his conviction in the amount of the fees incurred by

the defendant’s appointed trial counsel. N.C. Gen. Stat. § 7A-455(b) (2017). However,

this Court has required defendants be given notice and an opportunity to be heard

prior to entry of a civil judgment for attorney’s fees. See State v. Jacobs, 172 N.C.

App. 220, 235, 616 S.E.2d 306, 316 (2005); Friend, ___ N.C. App. ___, 809 S.E.2d 902.

         In State v. Jacobs, that defendant was notified of the attorney’s fees assessed

against him, but was not present when the amount of those fees was entered. Jacobs,

172 N.C. App. at 236, 616 S.E.2d at 317.           This Court vacated the trial court’s

imposition of attorney’s fees because the defendant was given notice of the court’s

intention to impose fees, but was never notified nor given the opportunity to be heard

on the total amount of fees. Id. Similarly, in Friend, the trial court did not inform

the defendant of his right to be heard on the issue of attorney’s fees, and nothing in

the record indicated that the defendant understood he had that right. Friend, ___

N.C. App. at ___, 809 S.E.2d at 907. This Court held that “[a]bsent a colloquy directly

with the defendant on [the issue of attorney’s fees], the requirements of notice and



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                                  Opinion of the Court



opportunity to be heard will be satisfied only if there is other evidence in the record

demonstrating that the defendant received notice, was aware of the opportunity to be

heard on the issue, and chose not to be heard.” Id.

       Here, after Defendant was convicted of criminal contempt, the trial court asked

Defendant’s attorney how much time she spent on the case:

              The Court: Do you know how much time again?

              ....

              Counsel: I’m sorry. For his case, it would be about nine
              and a half hours, Your Honor.

              The Court: All right. I’m going to set the attorney fees at
              five hundred and seventy dollars ($570). No. I’m just going
              to make a civil judgment. He’s serving an active sentence.
              All right.

       Because Defendant was present in the courtroom when the trial court imposed

attorney’s fees, Defendant was on notice of their imposition. See Jacobs, 172 N.C.

App. at 236, 616 S.E.2d at 317. However, the record indicates Defendant was not

given the opportunity to be heard on the issue. Based upon the record and the

transcript, there is no indication that the trial court addressed Defendant with regard

to the issue of attorney’s fees, or that Defendant knew he had the opportunity to

address the trial court. Accordingly, Defendant was not given an opportunity to be

heard as required by N.C. Gen. Stat § 7A-455(b), and we vacate the trial court’s civil

judgment for attorney’s fees and remand to the trial court for further proceedings on

this issue.

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                                  STATE V. BAKER

                                 Opinion of the Court



                                    Conclusion

      The trial court did not err in finding Defendant guilty of criminal contempt.

We therefore affirm this portion of the trial court’s order. However, the trial court

failed to provide Defendant with an opportunity to be heard on the assessment of

attorney’s fees, and we vacate in part and remand on this issue.

      AFFIRMED IN PART; VACATED IN PART AND REMANDED.

      Judges DIETZ and TYSON concur.




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