An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-812
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 21 January 2014



STATE OF NORTH CAROLINA

      v.                                      Rowan County
                                              No. 12 CRS 054233
RONALD LAFLEW WOODRUFF


      Appeal by Defendant from judgment entered 12 March 2013 by

Judge W. Erwin Spainhour in Superior Court, Rowan County.                      Heard

in the Court of Appeals 10 December 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Phyllis Tranchese, for the State.

      Peter Wood for Defendant.


      McGEE, Judge.


      Ronald     Laflew    Woodruff      (“Defendant”)      was      charged    with

violating a domestic violence protective order on 8 July 2012.

A jury found Defendant guilty of violating a domestic violence

protective order on 12 March 2013.            Defendant appeals.

      Defendant     argues    the    trial    court    erred    in    denying    his

motion to dismiss.           Defendant contends his motion to dismiss
                                    -2-
“should have been granted on two grounds.”          The first ground is

based on double jeopardy, and the second involves willfulness.

                            I. Double Jeopardy

                A. Preservation of the Issue for Review

       Preliminarily, we must address the issue of preservation.

“The procedure required in criminal trials to assert a double

jeopardy defense is well established[.]”         State v. McKenzie, 292

N.C. 170, 175, 232 S.E.2d 424, 428 (1977).         If the defendant “is

to take advantage of [the double jeopardy defense] on appeal, he

must first properly raise it before the trial court.            Failure to

do so precludes reliance on the defense on appeal.”              McKenzie,

292 N.C. at 175, 232 S.E.2d at 428; see also State v. Roope, 130

N.C. App. 356, 362-63, 503 S.E.2d 118, 123 (1998).

       “The   rule   that   constitutional   questions   must   be   raised

first in the trial court is based upon the reasoning that the

trial court should, in the first instance, pass[] on the issue.”

State v. Kirkwood, ___ N.C. App. ___, ___, 747 S.E.2d 730, 737

(2013) (internal quotation marks omitted).           “[D]ouble jeopardy

protection may not be raised on appeal unless the defense and

the facts underlying it are brought first to the attention of

the trial court.”      McKenzie, 292 N.C. App. at 176, 232 S.E.2d at

428.

       Defendant moved to dismiss at the close of the State’s
                                             -3-
evidence, but       offered no argument in support of                    his motion.

Defendant renewed his motion to dismiss at the close of all

evidence.       Defendant again offered no argument in support of his

motion.       Our   review      of    the     transcript       reveals   no   explicit

mention of double jeopardy.

       The   only   possible     implicit          reference    to   double   jeopardy

came    after     the   trial    court        denied    Defendant’s      motions   to

dismiss.     During discussions on jury instructions, the following

exchange occurred:

             [Defense Attorney]:   I would also point out
             to the Court that when this case was tried
             in district court, the judge found him not
             guilty of assault on a female.

             THE COURT: Well, I know, but that’s not
             binding on this Court and she has testified
             that he assaulted her on that occasion, so -
             -

             [Defense Attorney]:             Right.

             THE COURT: -- that’s the evidence I have to
             take in the light most favorable to the
             state at this point.

Since the transcript suggests the trial court possibly addressed

and ruled upon a double jeopardy issue, albeit after the denial

of Defendant’s motions to dismiss, we assume arguendo that the

issue of double jeopardy is preserved for our review.

                         B. Analysis of the Merits

       Defendant    contends         that,    once    the   district     court   found
                                                  -4-
Defendant “not guilty of the underlying assault on a female,

even   if    separately        charged,           no     court    could      reconsider      the

assault     as    an     element       of    another       crime.”           Defendant     cites

McKenzie, supra, for support.

       In McKenzie, the issue was “whether on a prosecution in

superior    court        for   involuntary              manslaughter      arising     from    an

automobile accident, the [S]tate may rely on [the] defendant’s

driving     while      under     the        influence       of    intoxicants . . . when

[the] defendant had been earlier acquitted of this offense in

the district court.”              McKenzie, 292 N.C. at 171-72, 232 S.E.2d

at 426.

       The Double Jeopardy Clause entitles “defendants in state

criminal proceedings to the benefit of the collateral estoppel

doctrine.”         Id.    at   174,         232    S.E.2d    at   427       (citing   Ashe    v.

Swenson, 397 U.S. 436, 25 L. Ed. 2d 469 (1970)).                                   Collateral

estoppel “means simply that when an issue of ultimate fact has

once been determined by a valid and final judgment, that issue

cannot again be litigated between the same parties in any future

lawsuit.”        McKenzie, 292 N.C. at 174, 232 S.E.2d at 427-28.

       “[T]he     acquittal       of    a     defendant       even     in     district   court

precludes        the     state     from           relitigating         in      a   subsequent

prosecution       any     issue    necessarily             decided      in    favor   of     the

defendant in the former acquittal.”                         Id. at 175, 232 S.E.2d at
                                          -5-
428.     Determining whether the issue in question was necessarily

decided in favor of the defendant “may require an examination of

the entire record of the earlier proceeding.”                 Id.

       In    the    present     case,     the    magistrate’s       order    alleges

Defendant violated a valid protective order on three grounds:

(1) by      “assaulting       the     plaintiff[,]”      (2) by   “harassing      the

plaintiff by taking video of her on her property[,]” and (3) by

“going to/around the plaintiff residence.”                   Even assuming that

“assaulting the plaintiff” is tantamount to the criminal offense

of assault on a female, Defendant fails to show that “assaulting

the plaintiff” formed the basis of his conviction for violating

a   domestic       violence    protective       order.      The   district      court

judgment indicates no particular ground.

       Furthermore,     the     district     court    judgment      indicates    only

that   Defendant      was     found    guilty   of    violation     of   a   domestic

violence protective order.              The record does not show Defendant

was found not guilty of assault on a female in district court.

We cannot determine whether the district court made a decision

on the issue of “assaulting the plaintiff” or “assault on a

female” at all.

       “Defendant has the burden of demonstrating that the issue

he seeks to foreclose from relitigation was actually decided in

the previous proceeding.”              State v. Carter, 357 N.C. 345, 355-
                                        -6-
56, 584 S.E.2d 792, 800 (2003) (citing McKenzie, 292 N.C. at

175, 232 S.E.2d at 428).          As discussed above, Defendant has not

shown   that   the   issue   he   seeks       to    foreclose      (“assault         on   a

female”) was actually decided in district court, or that the

issue was decided again in superior court.                    Defendant has thus

failed to show error on this basis.

                               II. Willfulness

      Again, we must first address the issue of preservation.

Defendant argues the trial court erred in denying his motion to

dismiss    because     there      was      no      evidence       of        Defendant’s

willfulness.     However, Defendant did not strive to preserve this

argument   for   review.       “In   order         to   preserve       an    issue    for

appellate review, a party must have presented to the trial court

a timely request, objection, or motion, stating the specific

grounds for the ruling the party desired the court to make if

the   specific   grounds     were    not      apparent     from     the       context.”

N.C.R. App. P. 10 (a)(1).

      In State v. Curry, 203 N.C. App. 375, 385, 692 S.E.2d 129,

137-38 (2010), the defendant argued at trial that the possession

of a firearm by a felon charge should be dismissed because the

State showed only that the defendant was charged with assault

with a deadly weapon inflicting serious injury.                             However, on

appeal, the defendant sought to argue that there was a variance
                                      -7-
between his indictment and the evidence presented at trial.                 Id.

at 385, 692 S.E.2d at 138.           This Court held that the defendant

waived the issue.          Id. at 385-86, 692 S.E.2d at 138 (citing

State v. Tellez, 200 N.C. App. 517, 521, 684 S.E.2d 733, 736

(2009)).

    In the present case, the transcript shows Defendant made no

argument   at   all   in   support   of     his   motions   to   dismiss.   We

addressed Defendant’s double jeopardy argument in Section I.B.,

because the transcript suggested that the trial court addressed

a possible double jeopardy issue, albeit after the denial of

Defendant’s motions to dismiss.             Because we assumed the double

jeopardy argument was preserved in spite of the total lack of

argument supporting Defendant’s motions to dismiss, we decline

to assume that this issue is preserved as well.                   It is well-

established that “the law does not permit parties to swap horses

between courts in order to get a better mount in the appellate

courts.”   Tellez, 200 N.C. App. at 521, 684 S.E.2d at 736.                  In

accordance with N.C.R. App. P. 10(a)(1), Curry, and Tellez, we

decline to address the issue of willfulness.

    No error.

    Judges HUNTER, Robert C. and ELMORE concur.

    Report per Rule 30(e).
