               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-1052

                                  Filed: 19 April 2016

Burke County, Nos. 14 CRS 1387, 52178

STATE OF NORTH CAROLINA

              v.

JAMES DAVID WILLIAMS


       Appeal by defendant from judgment entered 8 April 2015 by Judge Joseph N.

Crosswhite in Burke County Superior Court. Heard in the Court of Appeals 22

February 2016.


       Roy Cooper, Attorney General, by Erin O’Kane Scott, Assistant Attorney
       General, for the State.

       Franklin E. Wells, Jr. for defendant-appellant.


       DAVIS, Judge.


       James David Williams (“Defendant”) appeals from his conviction for

unlawfully entering property operated as a domestic violence safe house or haven by

a person subject to a protective order in violation of N.C. Gen. Stat. § 50B-4.1(g1). On

appeal, he contends that the trial court erred in denying his motions to dismiss

because there was no evidence presented at trial that he actually entered the

domestic violence shelter at issue. After careful review, we conclude that Defendant

received a fair trial free from error.
                                 STATE V. WILLIAMS

                                  Opinion of the Court



                               Factual Background

      The State presented evidence at trial tending to establish the following facts:

Defendant and Dawn Triplett (“Triplett”) were involved in a romantic relationship

and lived together in Glen Alpine, North Carolina from December 2013 to July 2014.

In April 2014, their relationship began to deteriorate, and on 7 July 2014 a physical

altercation occurred during which Defendant pointed a pellet gun at Triplett, pushed

her onto a bed, and “threatened to bust [her] head.” Defendant then forced Triplett

to go outside and get into the driver’s seat of his car at which point he “put a

cinderblock up against the driver’s side so [she] couldn’t get out.” When Triplett

attempted to exit the car through the passenger-side door, Defendant grabbed her by

the throat and verbally berated her. A neighbor who witnessed the altercation called

the Glen Alpine Police Department, and officers responded to the scene. Triplett

related to the officers the events that had transpired, and Defendant was placed

under arrest for assault on a female.

      On 18 July 2014, Triplett moved into Options Domestic Violence Shelter

(“Options”), a safe house for women who are victims of domestic violence and other

violent crimes.   That same day, Triplett filed a petition for a domestic violence

protective order (“DVPO”) in Burke County District Court. On 1 August 2014, the

Honorable Clifton Smith issued a DVPO preventing Defendant from having any




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                                  Opinion of the Court



contact with Triplett and further ordering Defendant to “stay away from [Triplett’s]

residence or any place where [Triplett] receives temporary shelter.”

      At approximately 6:45 a.m. on 8 August 2014, Defendant drove to the address

at which Options was located and parked his car in the parking lot. He exited his

vehicle and walked to the front door of the Options building. Defendant attempted

to open the door by pulling on the door handle only to discover that it was locked.

Defendant then returned to his vehicle and left the premises.

      Defendant’s presence on the front porch and his attempt to open the door were

captured by a surveillance camera that was being monitored at the time by Jessica

Dolinger (“Dolinger”), an Options employee. After Defendant’s departure, Dolinger

and other Options personnel discovered Defendant’s identity and contacted law

enforcement officers. Defendant was arrested later that day.

      On 8 September 2014, Defendant was indicted on charges of (1) violating N.C.

Gen. Stat. § 50B-4.1(g1); and (2) attaining the status of an habitual felon.      A

superseding indictment on the habitual felon charge was issued on 5 January 2015.

A jury trial was held before the Honorable Joseph N. Crosswhite in Burke County

Superior Court beginning on 6 April 2015. Both at the conclusion of the State’s

evidence and at the close of all the evidence, Defendant moved to dismiss the charge

arising under N.C. Gen. Stat. § 50B-4.1(g1) based on insufficiency of the evidence.

The trial court denied both motions.



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                                   Opinion of the Court



      The jury found Defendant guilty of violating N.C. Gen. Stat. § 50B-4.1(g1), and

Defendant subsequently pled guilty to the habitual felon charge. The trial court

consolidated Defendant’s convictions and sentenced him to 78-106 months

imprisonment. Defendant gave oral notice of appeal in open court.

                                       Analysis

      On appeal, Defendant argues that the trial court erred in denying his motions

to dismiss based on his contention that in order for him to have been lawfully

convicted of violating N.C. Gen. Stat. § 50B-4.1(g1) the State was required to prove

that he actually entered the Options building. The State, conversely, contends that

a violation of the statute occurred as soon as Defendant set foot onto the real property

upon which the shelter was situated.

                     The trial court’s denial of a motion to dismiss is
             reviewed de novo on appeal. Upon defendant’s motion for
             dismissal, the question for the Court 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. If
             so, the motion is properly denied.

State v. Pressley, __ N.C. App. __, __, 762 S.E.2d 374, 376 (internal citations and

quotation marks omitted), disc. review denied, 367 N.C. 829, 763 S.E.2d 382 (2014).

      N.C. Gen. Stat. § 50B-4.1(g1) is contained within the North Carolina Domestic

Violence Act (“the Domestic Violence Act”). See Comstock v. Comstock, __ N.C. App.

__, __, 780 S.E.2d 183, 185 (2015) (“The issuance and renewal of DVPOs, the means



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                                   Opinion of the Court



for enforcing them, and the penalties for their violation are governed by North

Carolina’s Domestic Violence Act, which is codified in Chapter 50B of the North

Carolina General Statutes.”). N.C. Gen. Stat. § 50B-4.1(g1) states, in pertinent part,

as follows:

              Unless covered under some other provision of law
              providing greater punishment, any person who is subject
              to a valid protective order . . . who enters property operated
              as a safe house or haven for victims of domestic violence,
              where a person protected under the order is residing, shall
              be guilty of a Class H felony. A person violates this
              subsection regardless of whether the person protected
              under the order is present on the property.

N.C. Gen. Stat. § 50B-4.1(g1) (2015) (emphasis added).

      The term “property” is not defined in N.C. Gen. Stat. § 50B-4.1. However, our

Supreme Court has held that “[n]othing else appearing, the Legislature is presumed

to have used the words of a statute to convey their natural and ordinary meaning. In

the absence of a contextual definition, courts may look to dictionaries to determine

the ordinary meaning of words within a statute.” State v. Abshire, 363 N.C. 322, 329,

677 S.E.2d 444, 449 (2009) (citation and quotation marks omitted).

      Webster’s New World College Dictionary defines property, in pertinent part,

as “the right to possess, use, and dispose of something; ownership [property in land] .

. . a thing or things owned; possessions collectively; esp., land or real estate owned[.]”

Webster’s New World College Dictionary 1150 (4th ed. 2010). Therefore, by its plain

meaning the term “property” is not limited to buildings or other structures affixed to


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                                        Opinion of the Court



land but also encompasses the land itself. Accordingly, upon Defendant’s entry onto

the real property upon which the Options building is situated, he was in violation of

N.C. Gen. Stat. § 50B-4.1(g1).1

       We further observe that the General Assembly’s use of the broad term

“property” — as opposed to a more restrictive word such as “building” — in N.C. Gen.

Stat. § 50B-4.1(g1) is consistent with the purposes underlying the Domestic Violence

Act. As the Supreme Court has held, “[o]ur General Assembly enacted the Domestic

Violence Act . . . to respond to the serious and invisible problem of domestic violence.”

State v. Elder, 368 N.C. 70, 72, 773 S.E.2d 51, 53 (2015) (citation and quotation marks

omitted). “In essence, [the Domestic Violence Act] requires the state to engage in

prompt remedial action adverse to an individual’s property or liberty interests in

order to further the legitimate state interest in immediately and effectively protecting

victims of domestic violence.” Thomas v. Williams, __ N.C. App. __, __, 773 S.E.2d

900, 903-04 (2015) (citation, quotation marks, and brackets omitted). By preventing

persons subject to a DVPO from entering not only the domestic violence shelter where

the victim resides but also the real property on which the shelter is situated, the




        1 We note that N.C. Gen. Stat. § 50B-4.1(g1) does not contain a mens rea requirement.

Therefore, Defendant’s act of entry onto the property in and of itself constituted a violation of the
statute regardless of his motive for doing so.




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                                         Opinion of the Court



General Assembly sought to maximize the protection afforded to victims of domestic

violence from their abusers.2

        Finally, we reject Defendant’s argument that the rule of lenity requires a

different result. “When construing an ambiguous criminal statute, we must apply

the rule of lenity, which requires us to strictly construe the statute in favor of the

defendant. However, this rule does not require that words be given their narrowest

or most strained possible meaning. A criminal statute is still construed utilizing

common sense and legislative intent.” In re N.T., 214 N.C. App. 136, 140, 715 S.E.2d

183, 185 (2011) (citation, quotation marks, and brackets omitted). See Abshire, 363

N.C. at 332, 677 S.E.2d at 451 (“The rule of lenity requires that we strictly construe

ambiguous criminal statutes. However, construing the word ‘address’ in terms of

indicating defendant’s residence is not a liberal reading in favor of the State; rather,

it is the only plausible reading that comports with the legislative purpose in enacting

the registration program.” (internal citation omitted)).



        2  While not essential to our holding, we note that in a separate subsection of N.C. Gen. Stat. §
50B-4.1, the General Assembly utilized the phrase “residence or household.” See N.C. Gen. Stat. §
50B-4.1(b). Thus, by using the term “property” in subsection (g1) rather than repeating the phrase
“residence or household,” the legislature demonstrated its awareness that the word “property”
possessed a different meaning. See generally Abshire, 363 N.C. at 332, 677 S.E.2d at 451 (reading
statute at issue in pari materia with related statutes in order to determine definition of undefined
statutory term); see also Comstock, __ N.C. App. at __, 780 S.E.2d at 186 (explaining that “statutory
provisions concerning the same subject matter must be construed together and harmonized to give
effect to each. Where . . . the General Assembly includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally presumed that the legislative body acts
intentionally and purposely in the disparate inclusion or exclusion” (internal citations, quotation
marks, and brackets omitted)).


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                                         Opinion of the Court



       As discussed above, adoption of the plain and ordinary meaning of the

statutory term “property” in the present context mandates the conclusion that it

encompasses both the Options building itself and the land upon which the building

sits. We cannot agree with Defendant that the rule of lenity requires us to adopt an

unduly narrow definition of the term that would lead to a contrary result.

       Defendant does not dispute that (1) he was subject to the DVPO previously

obtained by Triplett; (2) Triplett resided at Options on 8 August 2014; and (3) he

parked his car in the Options parking lot and then walked up to the front door of the

shelter on that date. Having determined that his actions constituted an unlawful

entry onto the property of Options within the meaning of N.C. Gen. Stat. § 50B-

4.1(g1), we therefore conclude that the trial court properly denied Defendant’s

motions to dismiss.3

                                            Conclusion

       For the reasons stated above, we conclude that the trial court did not err in

denying Defendant’s motions to dismiss and that Defendant received a fair trial free

from error.



       3  Defendant’s appellate brief also contains an argument that the trial court committed plain
error by failing to instruct the jury on the lesser-included offense of misdemeanor violation of a DVPO.
However, because Defendant conceded at oral argument that no legal support existed for this
argument, we need not address this issue. See State v. Stroud, 147 N.C. App. 549, 564, 557 S.E.2d
544, 553 (2001) (“[Defendant] conceded at oral argument the case law did not support her argument,
and she abandoned this argument. Therefore, we dismiss this assignment of error.”), cert. denied, 356
N.C. 623, 575 S.E.2d 758 (2002).


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                      STATE V. WILLIAMS

                       Opinion of the Court



NO ERROR.

Chief Judge McGEE and Judge GEER concur.




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