State v. Tucker, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 18, 2020)

Because there was insufficient evidence that the defendant knew of the terms of a domestic violence protective order, the trial court erred by denying the defendant’s motion to dismiss a charge of violating a civil DVPO while in possession of a deadly weapon and the trial court erred by instructing the jury on breaking and entering in violation of a protective order.   After being arrested for assaulting the victim, the defendant was served with an ex parte DVPO and notice of a hearing regarding whether another DVPO would be entered.  The defendant did not attend that hearing and, at the time of the incident giving rise to the charges at issue, had not been served with a year-long DVPO that was entered at the hearing in his absence.  As there was no direct evidence that the defendant had actual or constructive knowledge of the DVPO that was entered at the hearing he did not attend, the trial court erred by denying his motion to dismiss the charge of willfully violating the order.  Further, because the defendant did not have knowledge of the DVPO, it was plain error for the trial court to instruct the jury on felony breaking and entering in violation of a valid DVPO.

Judge Murphy concurred in part and in the judgment but dissented from the majority’s discussion of two unpublished cases and also would have sanctioned the State for certain misleading comments included in its brief.