State v. Wendorf, 274 N.C. App. 480 (Dec. 1, 2020)

The defendant in this case was found in criminal contempt after failing to appear as a witness at an assault on a female  trial involving her husband where she was the alleged victim.  The court first determined that failing to appear as a witness when subpoenaed is punishable as criminal contempt because it constitutes willful disobedience of, resistance to, or interference with a court’s lawful process.  The court then rejected the defendant’s jurisdictional argument that the show cause order issued by the district court was facially defective for failing to comply with G.S. 15A-924(5), explaining that the statute’s requirements for pleadings in criminal cases in superior court do not apply to proceedings for criminal contempt.  The court concluded by rejecting the following arguments advanced by the defendant: (1) that the district court’s failure to indicate that it used the reasonable doubt standard of proof deprived the superior court of jurisdiction on appeal from the district court’s order; (2) that it was error for the superior court to allow the district court judge to testify in the de novo hearing on appeal from the district court’s order; and (3) that competent evidence did not support the trial court’s findings of fact related to the defendant’s failure to appear.

Judge Berger concurred in a separate opinion, expressing his view that the majority should not have considered the defendant’s argument under Evidence Rule 605 regarding the competency of the district court judge as a witness, as well as his view that the majority should not have engaged in plain error review of the witness competency issue as it was a matter within the trial court’s sound discretion.