              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-212

                                 Filed: 5 June 2018

Wake County, No. 15 CRS 4737, 15 CRS 347, 15 CRS 200503, 15 CRS 5831-32

STATE OF NORTH CAROLINA,

             v.

KEVIN JONATHAN MITCHELL, Defendant.


      Appeal by defendant from judgments entered on or about 13 January 2016 and

15 January 2016 by Judge G. Wayne Abernathy in Superior Court, Wake County.

Heard in the Court of Appeals 27 September 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N.
      Callahan, for the State.

      Ward, Smith & Norris, P.A., by Kirby H. Smith, III, for defendant.


      STROUD, Judge.


      Defendant Kevin Jonathan Mitchell (“defendant”) appeals from his convictions

of felonious stalking, felonious obstruction of justice, and felonious attempted

obstruction of justice. On appeal, defendant argues that the trial court erred by

finding that the “Conditions of Release and Release Order” were in effect while

defendant was in custody of the Wake County Detention Center and denying his

motion to dismiss the felony stalking charge. He further argues that the court erred

by denying his motion to dismiss the felony obstruction of justice charges.     For

reasons stated below, we find no error with the trial court’s judgment.

                                    Background
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                                       Opinion of the Court



       The State’s evidence at trial showed these facts.               On 26 December 2014,

defendant was in a romantic relationship and living with Nancy1 and her four

children. Defendant is the father of Nancy’s youngest son. That evening, Nancy’s

daughters used her cell phone to text their father. The girls gave the phone back to

their mother, and Nancy walked to the bedroom to read the texts. Defendant then

entered the room, snatched the phone from Nancy’s hand, read the text, and jumped

on her. He choked Nancy and pushed her down on the bed. Nancy took the phone

back from defendant, and then he asked her for keys to the house. While Nancy was

looking for her set of keys, defendant sucker punched her in the face. Defendant left

and Nancy called the police, who took photographs of Nancy’s injuries and eventually

spotted defendant walking down the road nearby. Defendant was arrested for assault

on a female2 and taken to the Wake County Detention Center.

       On 26 December 2014, after defendant was arrested, a magistrate judge

entered an order entitled “Conditions of Release and Release Order” (AOC-CR-200,

Rev. 12/12) (“Order 1”), which denied bond and placed defendant on a 48-hour




       1 A pseudonym is used to protect the victim’s identity and for ease of reading.
       2 The parties stipulated in the record on appeal that defendant was charged with assault on a
female on 26 December 2014 in Wake County File No. 14-CR-229975 and then “[s]ubsequently, on
January 7, 2015, [defendant] was charged with habitual misdemeanor assault in Wake County File
No. 15-CR-200503, the basis of this charge being the December 26, 2014 assault on a female charge in
Wake County File No. 14-CR-229975.” The parties also stipulated that “[n]one of the documents in
Wake County File No. 14-CR-229975 have been included in this Record on Appeal.”



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domestic violence hold.3 In the top portion of the form, the preprinted language

states:

                To The Defendant Named Above, you are ORDERED to
                appear before the Court as provided above and at all
                subsequent continued dates. If you fail to appear, you will
                be arrested and you may be charged with the crime of
                willful failure to appear. You also may be arrested without
                a warrant if you violate any condition of release in this
                Order or in any document incorporated by reference.”

Just below this statement, the following statement was typed into a blank area of the

form: “NOT TO HAVE ANY CONTACT WITH [NANCY].” Below this, the magistrate

checked the box with this language: “Your release is not authorized.”

        The lower section of the form is entitled: “ORDER OF COMMITMENT.” This

portion of the form directed the Wake County Detention Center to hold defendant “for

the following purpose: DV HOLD.” It also stated that defendant was to be produced

“at the first session of District or Superior Court held in this county after entry of this

Order or, if no session is held before” 28 December 2014, then he must be brought

before a magistrate “at that time to determine conditions of pretrial release.”

        The back of the Order has four sections which are filled in by either a Judicial

Official or Jailer for each court appearance of the defendant. The four sections, from

top to bottom, are:


        3  See N.C. Gen. Stat. § 15A-534.1(b) (2017), “Crimes of domestic violence; bail and pretrial
release” (“A defendant may be retained in custody not more than 48 hours from the time of arrest
without a determination being made under this section by a judge. If a judge has not acted pursuant
to this section within 48 hours of arrest, the magistrate shall act under the provisions of this section.”).

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               CONDITIONS OF RELEASE MODIFICATIONS
               SUPPLEMENTAL ORDERS FOR COMMITMENT
               DEFENDANT RECEIVED BY DETENTION FACILITY
               DEFENDANT RELEASED FOR COURT APPEARANCE

       The first handwritten notes by the judge under “CONDITIONS OF RELEASE

MODIFICATIONS” state that defendant’s conditions of release were modified on 28

December 2014 to an $8,000.00 secured bond and “NCWV,” an acronym for “no

contact with victim.” The next modification was on 29 December 2014, when the

secured bond was increased to $10,000.00 and “no contact with victim.”4

       Nancy filed a complaint for a Domestic Violence Protective Order under N.C.

General Statutes Chapter 50B against defendant alleging he had committed acts of

domestic violence against her, and an ex parte domestic violence protective order (“ex

parte DVPO”) was issued on 29 December 2014, effective until a hearing scheduled

on 5 January 2015. Defendant was served with the ex parte DVPO in jail. Nancy did

not appear at the 5 January 2015 hearing, so the complaint was dismissed and the

ex parte order expired on that date.

       On 7 January 2015, a warrant was issued for defendant’s arrest for habitual

misdemeanor assault in File No. 15 CRS 200503 and another order entitled

“Conditions of Release and Release Order” (“Order 2”) was entered on the same AOC




       4  On 25 September 2017, the State filed a motion to amend the record on appeal, noted that
the original record contains only the front page of the Conditions of Release and Release Orders, and
asked this Court to allow the record on appeal to be amended so that the back side of these orders may
be included. We grant this motion so that we may fully address this issue on appeal.

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form as Order 1. In Order 2, defendant’s release was authorized upon execution of a

secured bond in the amount of $20,000.00. Order 2 includes the exact same provision

of “NOT TO HAVE ANY CONTACT WITH [NANCY]” as Order 1. He was also

required to provide fingerprints. In the portion of the form entitled “Additional

Information” was “Bond doubled pursuant to statute. Defendant has a $10,000.00

bond for 14CR229975.” The Order of Commitment portion of the form directed that

if defendant was not presented before a district or superior court judge by 9 January

2015, he must be brought before a magistrate “at that time to determine conditions

of pretrial release.” On the back of Order 2, in “Conditions of Release Modifications,”

defendant’s conditions of release were modified on 8 January 2015 to a $40,000.00

secured bond and no contact with victim.

       On 29 January 2015, the assault on a female charge in File No. 14 CR 229965

was apparently dismissed, so Order 1 was no longer in effect5. Nancy received six

letters from defendant between 2 January 2015 and 23 February 2015.                    The first

letters were cordial but escalated to threats when she did not respond or reply. Nancy

testified at trial that the letters led her to file for a second domestic violence protective

order against defendant, although there is no Chapter 50B order other than the one

issued on 29 December 2014 in the record on appeal. Nancy also received an envelope


       5 As noted above, the parties stipulated that the record on appeal contains no further
documents from File No. 14 CR 229975. The back side of Order 1 contains the modification entry:
“Dismissed” and is dated 29 January 2015, so with no additional information available, we can only
presume that this means that file itself must have been dismissed at that time.

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marked “Return to Sender. Not Deliverable as Addressed. Unable to Forward”

addressed to the Federal Building on Fayetteville Street in Raleigh with her address

as the return address. Nancy testified that she did not write this letter or know

anything about it before it arrived at her house. The letter contained a bomb threat

and demand for one million dollars, purportedly made by Nancy. Defendant was later

questioned and eventually admitted to writing the letter and confirmed to

investigators there was no bomb in the building. Defendant was indicted for assault

on a female and habitual misdemeanor assault on 23 February 2015 in Wake County

File No. 15 CRS 200503.

      Another letter purportedly written by Nancy was delivered to the Wake County

District Attorney’s Office on 25 March 2015. An investigator in the office was told

the letter had been sent by way of “jail mail,” which means that it was sent by an

inmate from the Wake County Detention Center. This letter stated that Nancy had

made false allegations of assault against defendant and made demands and threats

of committing a crime or terrorist attack if those demands were not met.

Investigators spoke with Nancy about the letter, and she denied writing or sending

it. Defendant was charged with felony stalking while a court order is in effect based

upon the letters to Nancy and two counts of felony obstruction of justice based upon

the letters to the Federal Building and the District Attorney’s office.




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                                  Opinion of the Court



      A jury trial was held on these charges on 11 January 2016 in Wake County

Superior Court. At the close of all the evidence but before the case went to the jury,

the trial court granted defendant’s motion to dismiss the original obstruction of

justice charge in 15 CRS 5832 regarding the Federal Building bomb threat, since the

evidence showed the letter was not addressed properly, so the offense was never

completed. Instead, the trial court allowed the lesser included offense of attempted

obstruction of justice to be submitted to the jury in its place.     The jury found

defendant guilty of assault on a female, felonious stalking, felonious obstruction of

justice, and felonious attempted obstruction of justice. Defendant admitted to his

status as a habitual felon. The trial court entered judgment on or about 13 January

2016 and an amended judgment on or about 15 January 2016. Defendant timely

appealed to this Court.

                                      Analysis

      I.     Motion to Dismiss Felony Stalking While Court Order in Effect Charge

      Defendant’s first argument on appeal is that the trial court erred in denying

defendant’s motion to dismiss the felony stalking charge by finding Orders 1 and 2

were in effect while defendant was in custody. The trial court concluded that when

defendant sent the letters, he was subject to three orders: (1) Order 1; (2) Nancy’s

first ex parte DVPO; and (3) Order 2. Defendant argues that conditions of release




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                                   Opinion of the Court



stated in Orders 1 and 2 do not apply until the person has been released from custody,

and since defendant was in jail when he wrote the letters, the orders did not apply.

      As the issue is whether the trial court reached a proper conclusion of law, we

review de novo. See, e.g., State v. Barnhill, 166 N.C. App. 228, 230-31, 601 S.E.2d

215, 217 (2004) (“Although the trial court’s findings of fact are generally deemed

conclusive when supported by competent evidence, a trial court’s conclusions of law .

. . [are] reviewable de novo. . . . [T]he trial court’s conclusions of law must be legally

correct, reflecting a correct application of applicable legal principles to the facts

found.” (Citations and quotation marks omitted)).

      Defendant was charged with felonious stalking under subsection (d) of N.C.

Gen. Stat. § 14-277.3A (2017): “A defendant who commits the offense of stalking when

there is a court order in effect prohibiting the conduct described under this section by

the defendant against the victim is guilty of a Class H felony.” N.C. Gen. Stat. § 14-

277.3A(d) (emphasis added).     The offense of stalking is defined by N.C. Gen. Stat. §

14-277.3A(c):

             A defendant is guilty of stalking if the defendant willfully
             on more than one occasion harasses another person
             without legal purpose or willfully engages in a course of
             conduct directed at a specific person without legal purpose
             and the defendant knows or should know that the
             harassment or the course of conduct would cause a
             reasonable person to do any of the following:
             (1) Fear for the person’s safety or the safety of the person’s
             immediate family or close personal associates.
             (2) Suffer substantial emotional distress by placing that


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                                   Opinion of the Court



             person in fear of death, bodily injury, or continued
             harassment.

      Defendant does not argue the trial court should have dismissed the charge of

stalking under N.C. Gen. Stat. § 14-277.3A(c), which is a Class A1 misdemeanor.

Defendant challenges only the elevation of the charge to a Class H felony based upon

the existence of a “court order in effect prohibiting the conduct described.” N.C. Gen.

Stat. § 14-277.3A(d).

      Under N.C. Gen. Stat. § 15A-534(a) (2017), a judicial official may place various

restrictions on a defendant as “conditions of pretrial release[,]” including “restrictions

on the travel, associations, conduct, or place of abode of the defendant[.]” (Emphasis

added). And under N.C. Gen. Stat. § 15A-534.1, additional conditions may be placed

on a defendant charged with various crimes of domestic violence.             On appeal,

defendant argues that he was not subject to the conditions of pretrial release in

Orders 1 and 2 because he never posted his bond and instead remained in jail during

the entire time period when the letters were sent. He argues he was not “released”

so a “condition of release” could not apply to him.

      Defendant’s argument is deceptively simple and focused on the title of the

Orders and on the word “release,” while ignoring the substance of the detailed

provisions of the Orders. Although Orders 1 and 2 are each titled as “Conditions of

Release and Release Order,” we look to the entirety of an order when interpreting it

and focus on the content, rather than the title, of the order. See, e.g., Cleveland


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                                  Opinion of the Court



Constr., Inc. v. Ellis-Don Constr. Inc., 210 N.C. App. 522, 535, 709 S.E.2d 512, 522

(2011)(“Court judgments and orders must be interpreted like other written

documents, not by focusing on isolated parts, but as a whole.” (Citation and quotation

marks omitted)); McNair v. Goodwin, 262 N.C. 1, 5, 136 S.E.2d 218, 221 (1964) (“The

effect of an order or judgment is not determined by its recitals, but by what may or

must be done pursuant thereto.”).

      The trial court’s form orders in this case, despite the title, contain much more

than just conditions of release. Under the title of the form is a reference to two

articles of Chapter 15A of the North Carolina General Statutes: Article 25, which

deals with pretrial commitment to a detention facility, and Article 26, which contains

provisions related to bail and pretrial release. The top portion of the form includes

provisions based upon Article 25, and the bottom portion of the form, entitled “Order

of Commitment,” includes provisions based upon Article 26.

      Under N.C. Gen. Stat. § 15A-521(a) (2017):

             Every person charged with a crime and held in custody
             who has not been released pursuant to Article 26 of this
             Chapter, Bail, must be committed by a written order of the
             judicial official who conducted the initial appearance as
             provided in Article 24 to an appropriate detention facility
             as provided in this section.

Section (b) describes what must be in the order of commitment:

             (b) Order of Commitment; Modification. -- The order of
             commitment must:
             (1) State the name of the person charged or identify him if


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             his name cannot be ascertained.
             (2) Specify the offense charged.
             (3) Designate the place of confinement.
             (4) If release is authorized pursuant to Article 26 of this
             Chapter, Bail, state the conditions of release. If a separate
             order stating the conditions has been entered, the
             commitment may make reference to that order, a copy of
             which must be attached to the commitment.
             (5) Subject to the provisions of subdivision (4), direct, as
             appropriate, that the defendant be:
             a. Produced before a district court judge pursuant to under
             Article 29 of this Chapter, First Appearance before District
             Court Judge,
             b. Produced before a district court judge for a probable
             cause hearing as provided in Article 30 of this Chapter,
             Probable-Cause Hearing,
             c. Produced for trial in the district or superior court, or
             d. Held for other specified purposes.
             (6) State the name and office of the judicial official making
             the order and be signed by him.

N.C. Gen. Stat. § 15A-521(b).

      “Form AOC-CR-200, Rev. 12/12,” the form order the trial court used for Orders

1 and 2, is a comprehensive order which includes both conditions of release and

commitment. This order can be modified but remains in effect from the time a

defendant is arrested until the charges upon which the order is based are dismissed

or the defendant is convicted of the crime. See generally N.C. Gen. Stat. §§ 15A-521;

15A-534. Upon conviction, the trial court would enter a judgment or other disposition

as appropriate under N.C. General Statutes Chapter 15A, Subchapter XIII. But the

order remains in effect during the entire prosecution. At each step of the process, this




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order memorializes the trial court’s determinations governing the defendant, whether

the defendant is held in a detention facility or released.

      Some of the terms of the order would apply whether the defendant is

committed or released, while others would apply only in one circumstance or the

other. For example, if a defendant posts the bond set for his release, he is released.

If he does not post the bond, he is not released, but the order remains in effect. Some

preprinted options of the order are procedural facts that could apply in a particular

case and are not pretrial release conditions, although they are relevant to the types

of conditions which may be placed upon a defendant. Here, the trial court’s typed

addition “NOT TO HAVE ANY CONTACT WITH [NANCY]” contains no additional

language to indicate this provision would only apply after defendant had met

conditions of release and was released. But the order remains in effect until the

charges are disposed of, whether the defendant is committed or released.

      Order 1 was “in effect” as of 26 December 2014 until 29 January 2015, when

the assault on a female charges in File No. 14 CR 229975 were apparently dismissed.

On 26 December 2014, the magistrate added a provision to Order 1 stating “NOT TO

HAVE ANY CONTACT WITH [NANCY].”                    This provision had no conditions or

limitations; none of the preprinted provisions on the form above this addition were

checked and they did not apply to defendant.          Below the added provisions, the

magistrate checked the box indicating “[y]our release is not authorized” and ordered



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the Wake County Detention Center to hold defendant for a “DV hold,” or domestic

violence hold under N.C. Gen. Stat. § 15A-534.1(b).

       Order 1 was modified several times by the trial court, as indicated by the

handwritten notations on the back. On 28 December 2014, defendant’s bond was set

at $8,000.00 secured and on 29 December 2014, it was increased to $10,000.00, but

both modifications included “NCWV.”         Thus, the “CONDITION OF RELEASE

MODIFICATIONS” were the setting of the bond and increase of the bond; there was

no modification to the no-contact provision originally stated on the front of the form,

since the trial court noted “NCWV” on the reverse side of the order to show that this

original provision remained in effect. As explained above, the charges for which this

Order was entered were apparently dismissed on 29 January 2015, so Order 1 ceased

to be “in effect” on that date.

       Order 2 was based upon charges of habitual misdemeanor assault in File No.

15 CR 200503. It was entered by the magistrate judge on 7 January 2015. Order 2

includes the exact same provision of “NOT TO HAVE ANY CONTACT WITH

[NANCY]” as Order 1 , in the same place on the form and not subject to any other

conditions. On Order 2, defendant was also required to provide fingerprints. In the

portion of the form entitled “Additional Information” the court entered: “Bond

doubled pursuant to statute. Defendant has a $10,000.00 bond for 14CR229975.” The

Order of Commitment portion of the form directed that if defendant was not



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presented before a district or superior court judge by 9 January 2015, he must be

brought before a magistrate “at that time to determine conditions of pretrial release.”

Order 2 remained in effect until 13 January 2016, when the charge of habitual

misdemeanor assault was “consolidated with 15 CRS 4737,” the habitual felon

charges.

        Therefore, either Order 1, Order 2, or both were “in effect” from 26 December

2014 until 13 January 2016.6 Defendant sent the first letter to Nancy on 2 January

2015 and the last letters were sent on 23 February 2015, so all the letters to Nancy

were sent when an order was “in effect.” N.C. Gen. Stat. § 14-277.3A(d). We must

now determine whether the orders also “prohibit[ed] the conduct described under this

section by the defendant against the victim[.]” Id.

       The “conduct described under this section” in N.C. Gen. Stat. § 14-277.3A(d)

includes “harassment” and the definition of harassment includes contacting a person

in any manner “including written or printed communication or transmission,

telephone,     cellular,   or   other    wireless telephonic         communication,        facsimile

transmission, pager messages or transmissions, answering machine or voice mail

messages or transmissions, and electronic mail messages or other computerized or

electronic transmissions….”           N.C. Gen. Stat. § 14-277.3A(b)(2). Defendant was


       6  Defendant does not dispute that the ex parte DVPO which was in effect from 26 December
2014 to 5 January 2015 would be a “court order in effect prohibiting the conduct described under” N.C.
Gen. Stat. § 14-277.3A. In addition, this time period was also covered by Order 1, so the additional
prohibition of the ex parte DVPO is superfluous.

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ordered not to contact Nancy, and “contact,” including written contact by a letter, is

“conduct described under this section.” N.C. Gen. Stat. § 14-277.3A(d).

      In addition, defendant’s argument focusing on just the word “release” in Orders

1 and 2 is not consistent with the specific terms or legislative intent of the stalking

offense punishable under N.C. Gen. Stat. § 14-277.3A. We interpret the prohibition

on “contact” with Nancy in Orders 1 and 2 in a manner in keeping with the intent of

N.C. Gen. Stat. § 14-277.3A, which is set forth within the statute:

             a)    Legislative Intent.--The General Assembly finds that
             stalking is a serious problem in this State and nationwide.
             Stalking involves severe intrusions on the victim’s personal
             privacy and autonomy. It is a crime that causes a long-
             lasting impact on the victim’s quality of life and creates
             risks to the security and safety of the victim and others,
             even in the absence of express threats of physical harm.
             Stalking conduct often becomes increasingly violent over
             time.

                    The General Assembly recognizes the dangerous
             nature of stalking as well as the strong connections
             between stalking and domestic violence and between
             stalking and sexual assault. Therefore, the General
             Assembly enacts this law to encourage effective intervention
             by the criminal justice system before stalking escalates into
             behavior that has serious or lethal consequences. The
             General Assembly intends to enact a stalking statute that
             permits the criminal justice system to hold stalkers
             accountable for a wide range of acts, communications, and
             conduct. The General Assembly recognizes that stalking
             includes, but is not limited to, a pattern of following,
             observing, or monitoring the victim, or committing violent
             or intimidating acts against the victim, regardless of the
             means.



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N.C. Gen. Stat. § 14-277.3A(a) (emphasis added).

          Both orders stated “NOT TO HAVE ANY CONTACT WITH [NANCY].”

Defendant does not argue that the threatening letters to Nancy do not fall under the

type of communication prohibited by N.C. Gen. Stat. § 14-277.3A; he argues only that

the requirement that he was “NOT TO HAVE ANY CONTACT WITH [NANCY]” did

not apply to him while he was in detention. As discussed above, the requirement as

stated on Order 1 and Order 2 was an independent provision prohibiting certain

conduct: contacting Nancy. By its terms, the prohibition was not conditioned on

defendant’s release or commitment but was required as long as the Order was in

effect.     We hold that the trial court did not err in denying defendant’s motion to

dismiss the felony stalking charge.

          II.   Motion to Dismiss Felony Obstruction of Justice Charges

          Defendant’s second and final argument on appeal is that the trial court erred

by denying his motion to dismiss the felony obstruction of justice charges because the

crimes can be committed without deceit and intent to defraud. Defendant claims that

the trial court concluded that deceit and intent to defraud are not necessary and

inherent elements of obstruction of justice.

          The indictment in 15 CRS 4737 alleged that defendant

                unlawfully, willfully and feloniously obstructed justice
                with deceit and intent to defraud by intentionally giving
                false information to the District Attorney’s Office by
                writing a letter purporting to be from the victim in Wake


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             County case 15 CRS 200503 recanting her earlier
             statements, implicating the charging officer in highly
             unethical and illegal behavior, and threatening to place
             explosives in the Wake County Courthouse. This act was
             done in violation of the common law of North Carolina and
             against the peace and dignity of the State.

Similarly, the indictment in 15 CRS 5832 alleged defendant

             unlawfully, willfully and feloniously obstructed justice
             with deceit and intent to defraud by intentionally sending
             a letter purporting to be from the victim in his pending
             court cases and containing a bomb threat to the personnel
             of the United States Federal Courthouse located on New
             Bern Avenue, Raleigh, NC 27601. This act was done in
             violation of the common law of North Carolina and against
             the peace and dignity of the State.

      At trial, defendant argued that the obstruction of justice charges should be

misdemeanors, not felonies, based on State v. Glidden, 317 N.C. 557, 346 S.E.2d 470

(1986). The trial court granted defendant’s motion to dismiss the obstruction of

justice charge in 15 CRS 5832, since the evidence showed that the offense was never

completed -- the letter never reached the Federal Building -- and instead instructed

on the lesser included offense of attempted obstruction of justice, a class I felony. But

the court refused to dismiss the remaining obstruction of justice felony charges based

upon defendant’s argument that to be a felony, the offense must always involve deceit

and fraud.   Defendant now argues this was error and that the North Carolina

Supreme Court mandated a definitional test to elevate misdemeanor offenses to




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felonies under N.C. Gen. Stat. § 14-3(b) (2017).7, and the obstruction of justice

offenses at issue here -- which involved sending threatening letters -- should not have

been elevated to a felony because such offense “does not by its definition include the

elements of secrecy and malice[.]”

        Glidden, which defendant relies on, is inapposite to the present case.                        In

Glidden, “[t]he issue before this Court [was] whether the misdemeanor of

transmitting an unsigned threatening letter in violation of N.C.G.S. § 14-394 is an

offense which is made a felony by N.C.G.S. § 14-3(b).” Glidden, 317 N.C. at 558, 346

S.E.2d at 470. The defendant in Glidden was charged under N.C. Gen. Stat. § 14-394

(2017), which makes transmission of an anonymous threatening letter a Class 1

misdemeanor; the State then sought to elevate the charge to a felony based upon N.C.

Gen. Stat. § 14-3(b). The North Carolina Supreme Court held that the offense of

transmitting an unsigned letter did not fall within the class of misdemeanors under

N.C. Gen. Stat. § 14-3(b) punishable as felonies because “the offense of transmitting

unsigned threatening letters does not by definition include the elements of secrecy

and malice.” Glidden, 317 N.C. at 561, 346 S.E.2d at 473.

        Here, defendant was charged with common law obstruction of justice; he was

not charged under N.C. Gen. Stat. § 14-394 (2017). While it is true that at common



        7 N.C. Gen. Stat. Ann. § 14-3(b): “If a misdemeanor offense as to which no specific punishment
is prescribed be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender
shall, except where the offense is a conspiracy to commit a misdemeanor, be guilty of a Class H felony.”

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law, obstruction of justice was ordinarily treated as a misdemeanor offense, this

Court has repeatedly recognized felony obstruction of justice as a crime under N.C.

Gen. Stat. § 14-3(b). See, e.g., State v. Cousin, 233 N.C. App. 523, 537, 757 S.E.2d

332, 342-43 (2014) (“The elements of common law felonious obstruction of justice are:

(1) the defendant unlawfully and willfully; (2) obstructed justice; (3) with deceit and

intent to defraud.”); State v. Blount, 209 N.C. App. 340, 343, 703 S.E.2d 921, 924

(2011) (“Common law obstruction of justice, the offense with which defendant was

charged, is ordinarily a misdemeanor. N.C. Gen. Stat. § 14-3(b) provides that a

misdemeanor may be elevated to a felony if the indictment alleges that the offense is

infamous, done in secrecy and malice, or done with deceit and intent to defraud.”

(Citations, quotation marks, brackets, and ellipses omitted)). We are bound by prior

decisions of this Court. See, e.g., In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d

30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue,

albeit in a different case, a subsequent panel of the same court is bound by that

precedent, unless it has been overturned by a higher court.”).

      The indictments here properly alleged all necessary elements of felonious

obstruction of justice. We hold that the trial court properly denied defendant’s motion

to dismiss the charges of felony obstruction of justice and felony attempted

obstruction of justice.

                                     Conclusion



                                         - 19 -
                          STATE V. MITCHELL

                           Opinion of the Court



We find no error with the trial court’s judgment.

NO ERROR.

Judges HUNTER and DAVIS concur.




                                  - 20 -
