              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-747

                                 Filed: 2 April 2019

Forsyth County, No. 16 CRS 051241

STATE OF NORTH CAROLINA

             v.

KEITH ALLEN SALTER


      Appeal by Defendant from Judgment and Order entered 9 August 2017 by

Judge Angela B. Puckett in Forsyth County Superior Court. Heard in the Court of

Appeals 28 February 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Carolyn
      McLain, for the State.

      Vitrano Law Offices, PLLC, by Sean P. Vitrano, for defendant-appellant.


      HAMPSON, Judge.


                     Factual and Procedural Background

      Keith Allen Salter (Defendant) appeals from (1) his conviction for

Misdemeanor Stalking and (2) an Order finding him in criminal contempt. The

evidence presented at trial tends to show the following:

      On 1 March 2016, Defendant was charged with one count of Misdemeanor

Stalking. On 1 April 2016, Forsyth County District Court found Defendant guilty of
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this offense and entered a suspended sentence. On 5 April 2016, Defendant gave

Notice of Appeal to Forsyth County Superior Court, requesting a jury trial.

      Defendant was tried de novo on the Misdemeanor Stalking charge during the

7 August 2017 Criminal Session of Forsyth County Superior Court.          Defendant

represented himself pro se and did not testify. Throughout the trial, the trial court

warned Defendant that he would be held to the same standards as an attorney, given

he represented himself pro se. On 8 August 2017, the trial court reviewed the closing

argument procedures for the next day with Defendant and the State, and the

following exchange occurred:

         THE COURT: Okay. All right. Let me talk about the closing
         arguments. . . .

            This will be very important, Mr. Salter, directed mainly to you
         because you are also the defendant who will be making the closing
         argument.

         THE DEFENDANT: Yes.

         THE COURT: You may not -- you chose not to testify. You may
         not testify, then, through your closing argument. That means you
         cannot tell the jury, “Here’s what I say happened.” You can make
         an argument as to what the evidence showed happened, but you
         may not testify as you’re making that closing argument; does that
         make sense?

         THE DEFENDANT: Yes.

             ....

         THE COURT: So when you are -- I will tell the jury very clearly
         that you may argue, you may characterize the evidence and


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attempt to persuade them to a particular verdict, but it would be
improper for either side to become abusive, to inject personal
experience, to express a personal belief as to the guilt or innocence
of the defendant.

   Mr. Salter, that makes it tricky for you because you’re now not
acting as the defendant, you’re making a closing argument as a
lawyer. So you may argue what the evidence indicates, but again,
you may not testify as to what -- to anything outside of what has
actually been heard on this witness stand; does that make sense?

THE DEFENDANT: Yes.

THE COURT: Do you understand what I’m saying?

THE DEFENDANT: Yes.

THE COURT: I’m telling you this so that you may prepare your
arguments tomorrow. I do not want you to get up here and then
me send the jury out and tell you “I’m not going to let you argue
that,” and you have no idea what you’re going to say then. So I’m
trying to give you a chance to prepare tonight so that you’re able
to make an argument tomorrow.

   You may, however, give your analysis of the evidence and
argue any position or conclusion with respect to any matter at
issue.

  All right. Do you have any questions, Mr. Salter, about what
would be allowed in a closing argument or not allowed.

THE DEFENDANT: No, ma’am. Evidence is allowed, correct?

THE COURT: Anything that has been put into evidence you may
refer to, or anything that has been testified to from the witness
stand that was admitted into evidence, okay?

   Now, something I sustained an objection to, that means it was
not admitted into evidence and you cannot argue that; does that
make sense?


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           THE DEFENDANT: Yes.

           THE COURT: Any other questions that you wish to ask me about
           what you will and will not be allowed to argue?

           THE DEFENDANT: No, ma’am.

        Despite these explicit instructions, Defendant began his closing argument the

following day by stating, “Every time you guys left out and went back into that room,

I wasn’t given an opportunity to present evidence. You haven’t seen all the evidence.

Every piece of evidence that had, I have on file, is on file but inadmissible.” The trial

court   interrupted    Defendant,   excused      the   jury,   and   gave   the   following

admonishment:

           THE COURT: Mr. Salter, I was very clear with you yesterday,
           that you were not to talk about anything that was not in evidence.
           You may not then tell the jury that there are things that you
           didn’t get to put in. That is completely improper. If I have to stop
           you for doing that kind of thing again, I will assume you have
           nothing left to say to the jury, and we will stop right there.

              You may argue -- and I took my time to be very clear so that
           you could prepare. You may argue anything that is in evidence,
           what you believe your contention is, but what you may not argue
           is what took place in this courtroom when the jury was not
           present; do you understand?

           THE DEFENDANT: I understand.

        After the jury returned, Defendant again attempted to discuss matters not in

evidence, such as his lack of a history of domestic violence, his personal background




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as a father of three children, and his educational background. The trial court excused

the jury for a second time and gave Defendant a final warning.

         THE COURT: I will note the jury is outside the presence of the
         courtroom. Mr. Salter, my patience is wearing thin because I
         went over this with you repeatedly yesterday. You decided not
         the [sic] testify, and I indicated to you that you may not testify
         about things outside of the record in front of the jury. The next
         time -- listen to me carefully -- that I tell you, I will hold you in
         contempt, and I will begin contempt proceedings; do you
         understand me?

         THE DEFENDANT: Yes.

         THE COURT: I have indicated to you repeatedly you may not get
         up and say things outside of the record. You did not testify, so
         you may not say what your background or what your education
         is. That’s not in record. You may not argue that that letter you
         didn’t write. You may argue that there -- that there may not be
         evidence, but if there is a letter, you did not testify. You may not
         avoid cross-examination by testifying in the closing argument. I
         have been very, very clear, and I took a lot of time yesterday to
         explain to you what you could not do, and you said you
         understood; and so far, I have sent the jury out repeatedly
         because you’re doing exactly what I told you not to do. If you
         violate that again, I will begin contempt proceedings. You may
         argue any matter that is in the record or any matter that’s in
         evidence. You may not avoid testifying by trying to testify in your
         closing argument; do you understand what I’m saying to you?

         THE DEFENDANT: I can testify -- I can only talk about evidence.

         THE COURT: You can talk about -- you may argue that -- you
         may argue any contention that you have regarding the evidence
         that was admitted yesterday; anything that was said on the
         stand, any lack of evidence that you believe wasn’t presented, that
         the State has not met their burden of proof, but you may not
         testify about things outside of the record; do you understand that?



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          THE DEFENDANT: Yes.

      Upon the jury reentering, Defendant continued his closing argument and

stated, “I went to Family Dollar and tried to get the video of us standing in line. They

said that is a corporate matter.” The trial court sua sponte objected to and sustained

its objection to this statement, as it concerned matters not in evidence. Defendant’s

statement served as the basis for the trial court’s finding of criminal contempt.

      On 9 August 2017, the jury found Defendant guilty of Misdemeanor Stalking.

The trial court entered Judgment on the Misdemeanor Stalking charge, imposed a

sentence of 75 days imprisonment, suspended that sentence, and placed Defendant

on supervised probation for 18 months. In calculating Defendant’s prior record level

for sentencing, Defendant stipulated both that he had a prior conviction of “No

Operator’s License” and that this conviction was a Class 2 Misdemeanor.

      The    same    day,   the   trial   court   also    entered   a   “Direct   Criminal

Contempt/Summary Proceedings/Findings and Order” (Criminal Contempt Order),

holding Defendant in direct criminal contempt for his testimonial statements made

during his closing argument and ordering him to pay a $300.00 fine within 30 days.

Specifically, the trial court made the following finding of fact in its Criminal

Contempt Order:

          The Court finds beyond a reasonable doubt that during the
          proceeding the above contemnor willfully behaved in a
          contemptuous manner, in that the above named contemnor did



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              repeatedly argue to jury matters outside the record and
          attempt to testify to the jury through his closing argument after
          choosing not to testify at trial. The court repeatedly told him not
          to do so both on 8/8/17 and on 8/9/17. The court warned him if he
          did so again contempt proceedings would begin. The defendant
          then stated to jury “I went to the Family Dollar and tried to get
          the video but corporate . . . .” That statement was his testimony
          attempt again and not in evid[ence].

                              Appellate Jurisdiction

      We note at the outset Defendant’s Notices of Appeal from both the

Misdemeanor Stalking Judgment and Criminal Contempt Order do not comply with

the requirements of Rule 4 of our Rules of Appellate Procedure. On 9 November 2018,

Defendant filed a Petition for Writ of Certiorari with this Court, seeking review of the

Misdemeanor Stalking Judgment and Criminal Contempt Order.

      Pursuant to Rule 21(a)(1) of our Appellate Rules, this Court possesses the

authority to grant a petition for writ of certiorari and review an order or judgment

entered by the trial court “when the right to prosecute an appeal has been lost by

failure to take timely action . . . .” N.C.R. App. P. 21(a)(1). This Court has allowed

for the issuance of a writ of certiorari despite technical defects in a notice of appeal

by a pro se defendant in a variety of circumstances, especially where the State has

not been misled by the mistake. See, e.g., State v. Springle, 244 N.C. App. 760, 763,

781 S.E.2d 518, 521 (2016) (“[A] defect in a notice of appeal should not result in loss

of the appeal as long as the intent to appeal can be fairly inferred from the notice and

the appellee is not misled by the mistake.” (citations, quotation marks, and ellipsis


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omitted)). Here, the State does not contend it has been misled by Defendant’s faulty

Notices of Appeal; therefore, in our discretion, we grant Defendant’s Petition for Writ

of Certiorari to review both the Misdemeanor Stalking Judgment and Criminal

Contempt Order.

                                            Issues

       Defendant raises two issues on appeal. First, Defendant contends the trial

court erred in sentencing Defendant as a Level II Offender based on his stipulation

that he was previously convicted of a Class 2 Misdemeanor. Second, Defendant

asserts the trial court erred in holding Defendant in direct criminal contempt because

his statements made during closing arguments were not in willful violation of the

trial court’s admonishments.

                                          Analysis

                                 I. Sentencing Stipulation

       Defendant contends the trial court erred in sentencing Defendant as a Level II

Offender based on his stipulation that he was previously convicted of a Class 2

Misdemeanor. We first note the State argues this issue is moot because Defendant

could have already completed his sentence, given that over 18 months have passed

since Judgment was entered.1 However, N.C. Gen. Stat. § 15A-1451 provides, “When

a defendant has given notice of appeal . . . [p]robation . . . is stayed.” N.C. Gen. Stat.


       1 The State concedes it “has been unable to determine whether defendant has completed his
sentence of 18 months of supervised probation.”

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§ 15A-1451(a)(4) (2017).        Because Defendant’s sentence of probation was

automatically stayed pending appeal, we determine this issue is not moot and

therefore address the merits.

      A misdemeanor offender’s prior record level is “determined by calculating the

number of the offender’s prior convictions that the court finds to have been proven . .

. .” N.C. Gen. Stat. § 15A-1340.21(a) (2017). “In determining the prior conviction

level, a prior offense may be included if it is either a felony or a misdemeanor at the

time the offense for which the offender is being sentenced is committed.” Id. § 15A-

1340.21(b). A defendant’s prior convictions can be proven, inter alia, by stipulation

of the parties. Id. § 15A-1340.21(c)(1).

      “While such convictions often effectively constitute a prior record level, a

defendant is not bound by a stipulation as to any conclusion of law that is required to

be made for the purpose of calculating that level.” State v. Gardner, 225 N.C. App.

161, 167, 736 S.E.2d 826, 830 (2013) (citations omitted). Our Supreme Court recently

addressed whether a defendant can stipulate on his sentencing worksheet that a prior

conviction justifies a certain sentencing classification or whether this is a conclusion

of law properly left to the trial court. See State v. Arrington, 371 N.C. 518, 819 S.E.2d

329 (2018).

      In Arrington, the defendant entered a plea agreement and stipulated to a

sentencing worksheet showing his prior offenses, including a second-degree murder



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conviction designated as a B1 offense. Id. at 519, 819 S.E.2d at 330. The defendant’s

second-degree murder conviction stemmed from acts committed prior to 1994;

however, the Legislature did not divide this crime into two classifications, B1 and B2,

until after the defendant’s 1994 conviction. Id. at 522-25, 819 S.E.2d at 332-34. Thus,

the defendant’s second-degree murder conviction could have been classified as a B1

or B2 offense, depending on certain factual circumstances existing at the time of the

murder; however, the defendant did not explain the factual underpinnings of his

conviction and merely stipulated to the B1 classification. Id. at 520-21, 819 S.E.2d at

330-31.    This Court vacated the trial court’s judgment and held that this

determination—whether the second-degree murder conviction should be classified as

a B1 or B2 offense for sentencing purposes—constituted a legal question to which the

defendant could not stipulate. Id. at 521, 819 S.E.2d at 331 (citation omitted).

       Our Supreme Court reversed this Court, reasoning that “[e]very criminal

conviction involves facts (i.e., what actually occurred) and the application of the law

to the facts, thus making the conviction a mixed question of fact and law.” Id.

“Consequently, when a defendant stipulates to a prior conviction on a worksheet, the

defendant is admitting that certain past conduct constituted a stated criminal

offense.” Id. at 522, 819 S.E.2d at 331. “By stipulating that the former conviction of

second-degree murder was a B1 offense, defendant properly stipulated that the facts

giving rise to the conviction fell within the statutory definition of a B1 classification.”



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Id. at 522, 819 S.E.2d at 332. “Thus, like a stipulation to any other conviction, when

a defendant stipulates to the existence of a prior second-degree murder offense in

tandem with its classification as either a B1 or B2 offense, he is stipulating that the

facts underlying his conviction justify that classification.” Id. at 524, 819 S.E.2d at

333.   Our Supreme Court further acknowledged that “[s]tipulations of prior

convictions, including the facts underlying a prior offense and the identity of the prior

offense itself, are routine[,]” and that because a defendant is “the person most familiar

with the facts surrounding his offense, . . . this Court need not require a trial court to

pursue further inquiry or make defendant recount the facts during the hearing.” Id.

at 526, 819 S.E.2d at 334 (citation omitted).

       Here, Defendant stipulated that his “No Operator’s License” conviction was

classified as a Class 2 Misdemeanor. However, Defendant contends this stipulation

was error because on the date of the current offense, “driving with an expired

operator’s license was either a Class 3 misdemeanor or an infraction,” per N.C. Gen.

Stat. § 20-35(a1), (a2). Compare N.C. Gen. Stat. § 20-35(a1)(1) (2015) (listing failure

to obtain a license before driving a motor vehicle as a Class 3 misdemeanor), with

N.C. Gen. Stat. § 20-35(a2) (2015) (listing (1) failure to carry a valid license while

driving and (2) operating a motor vehicle with an expired license as infractions).

However, N.C. Gen. Stat. § 20-35(a) expressly provides that unless another statute

controls, “a violation of this Article is a Class 2 misdemeanor . . . .” Id. § 20-35(a).



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For instance, section 20-30 of Article 22 sets out a number of acts that could fall within

the ambit of “No Operator’s License” and would be classified as Class 2

misdemeanors. See N.C. Gen. Stat. § 20-30(1)-(5) (2015); see also N.C. Gen. Stat. §§

20-32; -34 (2015).

       Defendant, as “the person most familiar with the facts surrounding his

offense,” stipulated that his “No Operator’s License” conviction was a Class 2

Misdemeanor. Arrington, 371 N.C. at 526, 819 S.E.2d at 334 (citation omitted). As

such, he was “stipulating that the facts underlying his conviction justify that

classification.” Id. at 524, 819 S.E.2d at 333. Further, the trial court was under no

duty to “pursue further inquiry or make defendant recount the facts during the

hearing.”     Id. at 526, 819 S.E.2d at 334 (citation omitted).                 Therefore, under

Arrington, we conclude there was no error in the trial court’s sentencing calculation.

                                 II. Criminal Contempt Order

       A. Standard of Review

       In criminal contempt proceedings, our standard of review is limited to

determining

            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. Findings of fact are binding on
            appeal if there is competent evidence to support them, even if
            there is evidence to the contrary. The trial court’s conclusions of
            law drawn from the findings of fact are reviewable de novo.

       2 Article 2 of Chapter 20 of our General Statutes is the Uniform Driver’s License Act. See N.C.
Gen. Stat. § 20-5 (2017).

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State v. Simon, 185 N.C. App. 247, 250, 648 S.E.2d 853, 855 (2007) (citations and

quotation marks omitted).

       B. Willfulness

       N.C. Gen. Stat. § 5A-11 provides a list of conduct that constitutes criminal

contempt. N.C. Gen. Stat. § 5A-11(a)(1)-(10) (2017). The trial court did not specify

which subsection applies; however, based on the trial court’s oral rendering of

criminal contempt, it is evident the trial court based its Criminal Contempt Order on

sections 5A-11(a)(1), (2), and (3), which state that criminal contempt is

          [w]illful behavior committed during the sitting of a court and
          directly tending to interrupt its proceedings[, w]illful behavior
          committed during the sitting of a court in its immediate view and
          presence and directly tending to impair the respect due its
          authority[, and w]illful disobedience of, resistance to, or
          interference with a court’s lawful process, order, directive, or
          instruction or its execution.

Id. § 5A-11(a)(1)-(3).

       Direct criminal contempt occurs when the act “(1) [i]s committed within the

sight or hearing of a presiding judicial official; and (2) [i]s committed in, or in

immediate proximity to, the room where proceedings are being held before the court;

and (3) [i]s likely to interrupt or interfere with matters then before the court.” N.C.

Gen. Stat. § 5A-13(a) (2017). Section 5A-14 of our General Statutes allows a judge to

“summarily impose measures in response to direct criminal contempt[.]” N.C. Gen.

Stat. § 5A-14(a) (2017).


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      Defendant challenges the trial court’s factual finding that he “willfully behaved

in a contemptuous manner” by arguing matters outside the record and attempting to

testify during his closing argument. Specifically, Defendant contends his actions

were not willful within the meaning of the criminal contempt statute and willfulness

must be considered in the context of Defendant’s lack of legal knowledge or training.

      As used in the criminal contempt statute, “willfulness” means an act “done

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

or excuse.” State v. Chriscoe, 85 N.C. App. 155, 158, 354 S.E.2d 289, 291 (1987)

(citations omitted). The term implies the act is done knowingly and of stubborn

purpose or resistance. McKillop v. Onslow Cty., 139 N.C. App. 53, 61-62, 532 S.E.2d

594, 600 (2000) (citations omitted). Willfulness also connotes a “bad faith disregard

for authority and the law.” Forte v. Forte, 65 N.C. App. 615, 616, 309 S.E.2d 729, 730

(1983) (citations omitted).

      Here, the Record shows the trial court repeatedly instructed Defendant that

he could not testify to matters outside the record during his closing arguments, given

that Defendant chose not to testify at trial.      On 8 August 2017, the trial court

reviewed the closing argument procedures for the following day with Defendant and

stressed to Defendant that he could not testify during his closing argument,

explaining “[t]hat means you cannot tell the jury, ‘Here’s what I say happened.’ ”




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Defendant stated he understood the trial court’s instruction five separate times

during the course of the instructions.

      However, the next day, Defendant began his closing argument by attempting

to tell the jury about evidence he acknowledged was “inadmissible.” Upon hearing

Defendant attempting to testify during his closing argument, the trial court excused

the jury and admonished Defendant “not to talk about anything that was not in

evidence.” After the trial court explained to Defendant what he could and could not

discuss, Defendant told the trial court he understood its instructions.

      Once the jury returned, however, Defendant again attempted to discuss

matters not in evidence. With the trial court’s patience “wearing thin,” the trial court

excused the jury for a second time and gave Defendant a final warning. The trial

court stressed it would not allow Defendant to “avoid cross-examination by testifying

in the closing argument” and warned Defendant if he attempted to testify to matters

outside of the record, the trial court would begin criminal contempt proceedings.

Once again, Defendant informed the trial court he understood its warnings.

      Thereafter, the jury returned, and Defendant continued his closing argument

by stating, “I went to Family Dollar and tried to get the video of us standing in line.

They said that is a corporate matter.” This statement by Defendant concerned

matters not in evidence and served as the basis for the trial court’s finding of criminal

contempt.



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      The transcript of Defendant’s closing argument constitutes competent evidence

to support the trial court’s finding that Defendant acted willfully in repeatedly

violating the trial court’s instructions. Although Defendant claims the evidence

suggests his testimony was the product of ignorance rather than willfulness, we are

bound by the trial court’s finding of fact. See Simon, 185 N.C. App. at 250, 648 S.E.2d

at 855 (“Findings of fact are binding on appeal if there is competent evidence to

support them, even if there is evidence to the contrary.” (emphasis added) (citation and

quotation marks omitted)).      Therefore, the trial court’s conclusion of law that

Defendant was “in [direct criminal] contempt of court” is likewise supported by this

finding of fact that Defendant repeatedly argued matters outside the record during

closing argument, despite the trial court’s repeated instructions and admonishments

over a two day period. Consequently, we affirm the Criminal Contempt Order.

                                     Conclusion

      Accordingly, for the foregoing reasons, we conclude there was no error in the

trial court’s Misdemeanor Stalking Judgment.              We also affirm the trial court’s

Criminal Contempt Order.

      NO ERROR IN PART; AFFIRMED IN PART.

      Judges ZACHARY and BERGER concur.




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