Criminal Practice – Indirect Criminal Contempt – Circumstantial Evidence

The trial court properly denied Defendant’s motion to dismiss for insufficient evidence and had jurisdiction to enter the Order. Ultimate finding 31 is supported and the criminal contempt adjudication was not barred by a two-year statute of limitations period.

We affirmed the Order.

In 2001, Plaintiff the State Board of Examiners of Plumbing, Heating, and Fire Sprinkler Contractors filed a complaint alleging Defendant violated sections 87-21(a)(1) and (5) of our General Statutes by engaging in the business of plumbing contracting without a valid license. The trial court entered a judgment of permanent injunction that prohibited Defendant from “engaging in business as a plumbing, heating, or fire sprinkler contractor at all such times as he is not licensed to do so pursuant to Article 2, Chapter 87, of the General Statutes of North Carolina.” In 2009, Plaintiff moved for order to show cause alleging Defendant violated the Injunction on four separate occasions between 2001 and 2005. The trial court entered an order of contempt, finding beyond a reasonable doubt that Defendant committed the violations alleged by Plaintiff. The trial court sentenced Defendant to 120 days in the Burke-Catawba District Confinement Facility, but Plaintiff consented to Defendant serving a lesser sentence of 10 days in confinement.

In 2022, Plaintiff filed a motion for order to show cause alleging that in 2019, Defendant, again, violated the Injunction. The trial court denied Plaintiff’s motion. Defendant moved to dismiss, arguing Plaintiff’s evidence was insufficient to establish he violated the Injunction since there was no direct evidence he installed the new HVAC system. The trial court denied Defendant’s motion stating, “there is, at this point, substantial evidence reasonably necessary to persuade what would be reasonable jury or a trier of fact in this case.” At the close of all the evidence, Defendant renewed his motion. The trial court denied the motion and informed Defendant he was being held in criminal contempt for violating the Injunction.

The issues on appeal were whether (1) the trial court erred by denying Defendant’s motion to dismiss; (2) the trial court had jurisdiction to enter the Order; (3) findings of fact 13, 14, 15, 28, 31, and 32 are supported by competent evidence; and (4) the criminal contempt proceeding was barred by a two-year statute of limitations.

First, Defendant argued the trial court erred by denying his motion to dismiss. Specifically, Defendant asserted that Plaintiff’s evidence was insufficient because Plaintiff presented no direct evidence that Defendant installed the new HVAC system and his conduct regarding the duct work fell within the carve-out exception. We disagreed. Although there was no direct evidence that Defendant installed the new HVAC system, the circumstantial evidence was more than sufficient to survive Defendant’s motion to dismiss.

Defendant further argued that the evidence was insufficient to establish the duct work “repair” he performed on the old HVAC system constituted a violation of the Injunction. Specifically, Defendant argued this work falls within the “carve out exception” of section 87-21(c). We disagreed. Defendant’s admission that he “remov[ed] the section of duct board and replac[ed] it” was substantial evidence upon which a rational juror could conclude that Defendant violated the Injunction. Accordingly, the trial court properly denied Defendant’s motion to dismiss for insufficient evidence.

Next, Defendant argued the trial court lacked jurisdiction to enter the Order because he gave notice of appeal before the trial court entered the Order. We disagreed. Defendant’s notice of appeal from the Form did not divest the trial court of jurisdiction because the Form was neither a final judgment nor an appealable interlocutory order. Accordingly, the trial court had jurisdiction to enter the Order.

In his next argument, Defendant asserted the following findings of fact are not supported by competent evidence: 13, 14, 15, 28, 31, and 32. We disagreed. Plaintiff was not required to demonstrate that Defendant installed the new HVAC system incorrectly to establish he violated the Injunction. Instead, Plaintiff only had to demonstrate Defendant installed the new HVAC system. Put simply, even if we were to agree with Defendant and set aside these findings, the trial court’s remaining findings support the conclusion that Defendant willfully violated the Injunction. Accordingly, even assuming the trial court erred by making findings of fact 13, 14, and 15, any error was not prejudicial.

Finally, Defendant asserted the court erred by finding him in criminal contempt because criminal contempt is a misdemeanor subject to a two-year statute of limitations. According to Defendant, the statute of limitations had run because the alleged violations occurred prior to May 30, 2019 and Plaintiff’s motion for order to show cause was filed on May 26, 2022, over two years later. We disagreed. Because a criminal contempt adjudication is not a misdemeanor and there is no applicable statute of limitations period for criminal contempt, Defendant’s statute of limitations argument fails.

We affirmed.

State Board of Examiners of Plumbing Heating and Fire Sprinkler Contractors v. Hudson (Lawyers’ Weekly No. 011-117-25, 25 pp.) (Jeff Carpenter, J.) Appealed from Burke County Superior Court (Reggie E. McKnight, J.) Wesley E. Starnes, PC, by Wesley E. Starnes, for Defendant-Appellant; Young Moore & Henderson, P.A., by Reed N. Fountain and John N. Hutson, III, for Plaintiff-Appellee. North Carolina Court of Appeals