No. Coa09-1361 Fourteenth Judicial District

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NO. COA09-1361 FOURTEENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

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Vs.) From DurhamCounty ) 06 CRS 48012-14

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KENDRA RUTH VAN PELT )

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Defendant-Appellant.)

QUESTION PRESENTED

I.Did the Trial Court Err in Failing to Dismiss the Charges Against the Defendant at the Close of the State’s Evidence and at the Close of All Evidence Due to Lack of Evidence to Support a Conviction?

STATEMENT OF THE CASE

Defendant-Appellant, Kendra Ruth Van Pelt, was charged with: (1) Misdemeanor Stalking; (2) Making Harassing Phone Calls (also a misdemeanor). (R pp 4-5) She was tried before a jury at the April 27, 2009 session of the SuperiorCourtofDurhamCounty, before the Honorable R. Allan Baddour, Jr. The jury returned verdicts of guilty on both charges. The Court entered judgment against the Ms. Van Pelt on April 30, 2009. (R pp 64-65) Ms. Van Pelt filed a written Notice of Appeal on May 1, 2009. (R pp 70-71)

The Record on Appeal was filed in the Court of Appeals on October 21, 2009 and docketed on November 2, 2009.

STATEMENT OF THE BASIS OF APPELLATE REVIEW

Ms. Van Pelt appeals by right pursuant to N.C. Gen. Stat. § 7A-27(b)a final judgment of conviction entered by the Durham County Superior Court following a jury verdict.

STATEMENT OF FACTS

Appellant, Kendra Van Pelt, was a patient of Dr. Phillip Shadduck in 2001. (T p 67) Although Ms. Van Pelt did not testify, the Record reflects that she believes he performed “gastric bypass” surgery on her. (T p 67)

The State’s evidence shows that Ms. Van Pelt began contacting Dr. Shadduck’s office, Regional Surgical Associates, and a hospital at which he worked in February and March of 2006.

Ms. Crystal Gregory, a receptionist for Dr. Shadduck’s office, testified that Ms. Van Pelt brought a poem to the office in February of 2006. (T pp 67-68) Ms. Van Pelt described it as “a thank-you for surgery he had done.” (T p 67) She told Ms. Gregory that she had left the same poem in “other doctor’s offices.” (T p 69)

The poem reads as follows:

As I sleep, I have incredible recurring dreams. Visions I hope will come true when I awake. Beautiful thoughts on aspiring to reach the highest. It seems like what I wish and desire, it’s almost there. I can feel it. I can almost touch it. Premonitions of my life being better. Dreams are much like a mirror of life. Beaming lights coming down from the sky. Fantasies dancing through my head. Sometimes rippling through like a steamboat. Sweet dreams to you.” (T p 70)

Ms. Gregory testified that their office’s “computer system” showed that Dr. Shadduck had seen Ms. Van Pelt only one time, in 2001, and that he had never operated on her. (T p 67) Ms. Van Pelt told Ms. Gregory that Dr. Shadduck had performed “gastric bypass” surgery on her, but Ms. Gregory testified that Dr. Shadduck “did not do that type of surgery.” (T p 67) According to Ms. Gregory, Ms. Van Pelt asked her where Dr. Shadduck was and, upon learning that he was out of the office, asked where he had gone, if he had taken his “two children” with him, and if his children were “home-schooled.” (T p 68)

Ms. Van Pelt did not leave her telephone number with Ms. Gregory, but “on Friday, she came back to the office and she ...asked [Ms. Gregory] if [she] had given Dr. Shadduck the poem.” (T p 70) Ms. Gregory responded, “no,” because “he was still out of the office.” (T p 70)

Ms. Gregory recalls that Ms. Van Pelt appeared “a little agitated” and “just kind of confused about a lot of things.” (T p 71) She told her that she had a bruise on her leg, which she had gotten from playing tennis, and she pulled up her dress to show Ms. Gregory a bruise on her thigh. (T p 71) Then she confided that people “were mean” to her and that “she didn’t understand why people had to be mean to her.” (T p 71) She told Ms. Gregory that an employer had “hit her in the back with a mop broom.” (T p 71) She went to the emergency room for pain and, when a resident told her, “there was nothing wrong with her,” she hit him in the back and said “see, it does hurt when you get hit in the back.” (T p 71)

Ms. Van Pelt left the office and “10 or 15 minutes later” she came back, and asked for her poem, so, according to Ms. Gregory, she could give it to Dr. Shadduck herself. (T p 72) Ms. Gregory returned the poem and had no further contact with Ms. Van Pelt. (T p 72) She never saw her at or around Dr. Shadduck’s office again. (T p 77)

Ms. Diane Hamilton Clayton is a registered nurse who worked for Dr. Shadduck in 2006 at Regional Surgical Associates. (T p 81) She first met Ms. Van Pelt on February 13, 2006 when she brought in the poem for Dr. Shadduck. (T pp 81-82) She saw Ms. Van Pelt speaking to another employee and noticed that her “voice was kind of loud.” (T p 84) She overheard her saying, “Why don’t you know what time he’ll be here?” (T p 84)

Ms. Clayton characterized Ms. Van Pelt as “agitated” because she could not arrange a time to give Dr. Shadduck the poem, which, she observed, was displayed in a frame. (T p 84) Ms. Van Pelt informed Ms. Clayton that she had “hung” the same poem “all over Chapel Hill.” (T p 84)

Ms. Van Pelt was in the office about fifteen minutes. Ms. Clayton told her that she did not know when Dr. Shadduck would return to the office. (T p 85) Ms Van Pelt left the poem with Ms. Clayton, but came back on February 24th to retrieve it. (T p 86)

Ms. Clayton explained that she began to keep records of Ms. Van Pelt’s contacts with Dr. Shadduck’s office because “after a couple of the phone calls and the behavior she displayed when she was in the office, we were a little concerned.” (T p 89) Although Ms. Clayton brought with her some hand-written notes, ostensibly notes documenting messages from Ms. Van Pelt, the Court sustained objections to the content, as Ms. Clayton lacked first-hand knowledge about the preparer. (T pp 91-92; R pp 61-63)

Ms. Clayton recalls that she had “received a call from [Ms. Van Pelt]...that she was having abdominal pain, and she had demanded to see Dr. Shadduck.” (T p 94) She “asked her...if she had any nausea, vomiting, fever, chills, anything indicating an emergency, which she did not.” (T p 94) She “directed her to a primary care physician.” (T p 94)

Ms. Van Pelt called back on a later date and told Ms. Clayton that she was feeling much better, but that she still wanted an appointment with Dr. Shadduck. (T p 94) However, when Ms. Clayton offered her an appointment, she declined. (T p 94)

Ms. Clayton also recalls a day on which Ms. Van Pelt brought a pizza to the office. (T p 96) She was in the lobby and told Ms. Clayton that she was waiting for a pizza to be delivered and that she wanted to give the pizza to Dr. Shadduck personally. (T p 97) Ms. Clayton described Ms. Van Pelt’s demeanor on that occasion as “very hyper;” “she didn’t have complete thoughts;” “[s]he was talking about advertising...and having Dr. Shadduck advertise for her.” (T p 98) Ms. Van Pelt left after the pizza was delivered. (T p 98) Ms. Clayton told Dr. Shadduck about the incident and he discarded the pizza. (T p 98)

Ms. Clayton never saw a weapon on Ms. Van Pelt. (T p 105) She never told Ms. Van Pelt she was no longer a patient of Dr. Shadduck’s or welcome at his office. (T p 105)

Mr. Wayne Barr, the Telecommunications Manager at the DurhamRegionalHospital, testified that, prior to the summer of 2006, the hospital only recorded calls originated by employee-operators, and those records were purged after seven days. (T pp 52, 54-55) At the time of trial, there was no way to determine if Ms. Van Pelt had telephoned Dr. Shadduck at the hospital.

The hospital did, however, record messages generated by employee-operators. (T pp 58-59) Hospital records show a message entered on March 22, 2006, described as follows:

Kendra called, stated that she will be delivering a med pizza on Friday, 3/24. Gives a phone number 360-5835. The pizza will be free. And then there are also two remarks that were entered on that same message that says, “this message is for Dr. Shadduck only, not the staff. It is a surprise for the staff. They are not to be given this message. (T p 61)

A message was also recorded from a “Kendra Vanelt” on March 21, 2006 at 7:06 p.m. (T p 63)

Debra Shadduck, Dr. Shadduck’s wife, testified that she and her husband received a telephone call at approximately 9:35 p.m., on a date she does not recall. (T p 110) They were already in bed. (T p 111) Their personal telephone number is published. (T p 111) She observed that caller identification read “Kendra Van Pelt.” (T p 111) She overheard her husband tell the caller:

If so, you need to go to the ER to be seen then. If this is not an emergency situation, then it is not –- it needs to be addressed at the office. So you need to call and make an appointment at the office. It is not appropriate for you to be calling our home at this time. (T p 111)

She described her husband as becoming frustrated at having to reiterate that “if this was an emergency situation, she needed to seek medical care at the hospital.” (T p 112) Eventually, he hung up on the caller. (T p 112)

The telephone rang a second time and Ms. Shadduck answered it. This time the caller, Ms. Van Pelt on the caller identification, informed her:

Your husband doesn’t love you. Do you think your husband would love you? He is having an affair with me. He has an apartment in Raleigh. I’m not the only woman. There is another woman. Do you really think he loves you? Do you really think he loves you? Now tell me, do you really think he loves you?” She kept raising her voice. (T pp 112-113)

Ms. Shadduck testified that, after that conversation, she took private self-defense classes. (T pp 115-116) She discussed these events with their fourteen-year old, and reviewed safety techniques, particularly in connection with strangers, with their youngest child. (T pp 115-116)

Ms. Van Pelt did not call the Shadducks’ residence again. (T p 117) Ms. Shadduck has never seen Kendra Van Pelt at her children’s school, home or her husband’s office. (T p. 119)

Dr. Shadduck testified that he treated Ms. Van Pelt in late 2001. (T p 124) He had no contact with her until January of 2006 when “a plant was delivered to [his] office with a sticky note that had her name and phone number.” (T pp 124-125) He did not see Ms. Van Pelt on that date; his staff made him aware of the plant and note. (T p 125) The note read:

To Dr. Shadduck. Thanks for all of your help. I’m feeling so much better, and I have lost a lot of weight. Kendra Van Pelt. 919-360-5853. (T p 125)

One month later, in February of 2006, he learned from his staff that Ms. Van Pelt had visited his office when he was out of town and had left a poem. (T p 126) He could not remember who she was and “reviewed the office chart,” which showed only one prior appointment 2001. (T p 126)

At trial, Dr. Shadduck had retrieved a “weeks worth” of records from the “hospital” (presumably DurhamRegionalHospital) because “that’s all the computer would track.” (T p 128) Those records showed four pages from Ms Van Pelt to him at the hospital, on the following dates: March 21, 2006 at 7:06 p.m. and 7:08 p.m.; March 22, 2006 at 5:09 p.m. and 7:41 p.m. (T p 129) Messages associated with the calls show only Ms. Van Pelt’s name and number; one message indicated that she had ordered a pizza for delivery to the hospital. (T p 129)

His next contact with Ms. Van Pelt was in early April, 2006. (T p 131) He received a telephone call to his home between 9:30 p.m. and 10:00 p.m. at night. Although he saw her name on caller identification, he, nonetheless, picked up the phone, because, “What if there were an emergency?” “I would need to be able to respond to that.” (T p 131)

Dr. Shadduck testified that he spoke to Ms. Van Pelt and ascertained that there was no medical emergency; she told him she was not “having any medical issues.” (T p 131) She responded, “I don’t want any medical care.” “I just want to talk to you.” (T p 132)

When the telephone rang again with the same caller identification, Dr. Shadduck observed his wife answer. (T p 132) He could hear a “loud voice” on the other end of the line, and his wife “seemed to be a bit agitated.” (T p 133) After speaking to his wife about that telephone call, Dr. Shadduck telephoned a Durham police officer whom he knew. (T p 133)

Dr. Shadduck had no further direct contact with Ms. Van Pelt outside of the legal system, except that she did file a complaint against him with the North Carolina Medical Board. (T pp 135-136, 141-142) He testified that the complaint was dismissed. (T p 138)

Dr. Shadduck agrees that he never told Ms. Van Pelt that he would not treat her if she “did have a genuine medical problem.” (T p 139) He never instructed his staff to decline treatment to her, or to ask her to leave his office. (T p 140) He testified that Ms. Van Pelt “was offered [appointments] and declined.” (T p 143)

Dr. Shadduck never received a threat from Ms. Van Pelt, nor did he observe her in the vicinity of his home, his children’s school or any other location that he or his family frequented. (T p 142)

Dr. Shadduck filed a civil complaint under Chapter 50C[1] of the North Carolina General Statutes against Ms. Van Pelt. (Addendum to R pp A1-A9)The Court entered an ex parte order on October 5, 2006 (R pp A1-A9) The Court continued the hearing on the ex parte order several times because Ms. Van Pelt was never served. (R pp A1-A9) On April 7, 2007, the Court entered an order dismissing the complaint with the finding that the “plaintiff is not in court.” (R p A2; T pp 158-159)

Ms. Van Pelt did not testify, or otherwise present evidence.

ARGUMENT

I. STANDARD OF REVIEW

In deciding whether to dismiss a charge due to the insufficiency of the evidence to support a conviction, the trial court determines if the State has presented “substantial evidence of each element of the crime and that the defendant is the perpetrator.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1996), appeal after remand 353 N.C. 400, 545 S.E.2d 190, cert. denied, 534 U.S. 1046, 122 S.Ct. 628, 151 L.Ed.2d 548 (2001). Substantial evidence “is such relevant evidence as a reasonable mind might except as adequate to support a conclusion.” State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638 (1987), citing, State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Whether the evidence presented is “substantial” is a question of law for the court. State v. Sexton, 444 S.E.2d 879, 902, 336 N.C. 321, 361, cert. denied, 513 U.S. 1006, 115 S.Ct. 525, 130 L.Ed.2d 429 (1994), citing State v. Everhardt, 307 N.C. 62, 65, 296 S.E.2d 649, 651 (1982). The trial court must consider all evidence in the light most favorable to the State. State v. Hinton, 155 N.C.App. 561, 573 S.E.2d 609 (2002).

Whether a fatal variance exists between the language of a warrant and the evidence is a question of law which the Court reviews de novo. State v. Marshall, 188 N.C.App. 744, 656 S.E.2d 709, disc. rev. denied, N.C. , 661 S.E.2d 890 (2008).

II. THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CHARGE OF MISDEMEANOR STALKING AGAINST THE APPELLANT.

Assignments of Error no.’s1, 2; T pp 167-170, 219, R p 82

N.C. Gen. Stat. § 14-277.3, “Stalking,” reads as follows:

(a) Offense.- A person is guilty of the offense of stalking if the person willfully on more than one occasion follows or is in the presence of, or otherwise harasses, another person without legal purpose and with the intent to do any of the following:

(1) Place that person in reasonable fear either for that the person’s safety or the safety of the person’s immediate family or close personal associates.

(2) Cause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment, and that in fact causes that person substantial emotional distress.

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(c) Definition.- For the purposes of this section, the term “harasses” or “harassment” means knowing conduct, including written or printed communication or transmission, telephone or cellular or other wireless telephonic communication, facsimile, transmission, pager messages or transmissions, answering machine or voice mail messages or transmission, and electronic mail messages or other computerized or electronic transmissions, directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.

By express language, the offense of stalking requires both harassing contactand the intent either to: (1) place the victim, close associate or family member in fear of bodily harm; or (2) cause the victim to experience “substantial emotional distress.”

This statute creates a “reasonable person standard,” which requires an objective, rather than subjective analysis.State v. Watson, 169 N.C.App. 331, 338, 610 S.E.2d 472, 477 (2005), and State v. Ferebee, 137 N.C.App. 710, 715, 529 S.E.2d 686, 690 (2000). This Court has directed trial courts to:

ensure that an objective standard, based on what frightens an ordinary, prudent person under the same or similar circumstances is applied rather than a subjective standard which focuses on the individual’s fears and apprehensions. State v. Ferebee, 137 N.C.App. at 717, 529 S.E.2d at 690, citing, State v. Bruce, 268 N.C. 174, 182, 150 S.E.2d 216, 223 (1996), and, State v. Sawyer, 29 N.C.App. 505, 507, 225 S.E.2d 328, 328-329 (1976).

The “reasonable person” standard survived the 1997 rewrite of N.C. Gen. Stat. § 14-277.3. Id.That standard, as opposed to a subjective standard, protects the statute from an unconstitutional degree of vagueness. State v. Watson, 169 N.C.App. 331, 338, 610 S.E.2d 472, 477 (2005).

Moreover, the fear the victim experiences must be substantial. The statute expressly requires the stalking activity to be something that “harasses.” N.C. Gen. Stat. § 14-277.3 (2008). “Harassment” is conduct which “torments,” “terrorizes,” or “terrifies” the victim. Id. Courts have defined the term “terrorizing,” for purposesofNorth Carolina’s penal statutes as follows:

Terrorizing is defined as ‘more than just putting another in fear. It means putting that person in some high degree of fear, a state of intense fright or apprehension.’ State v. Williams, 127 N.C.App. 464, 468, 490 S.E.2d 583, 587 (1997), citing, State v. Davis, 341 N.C.1, 24, 455 S.E.2d 627, 639 (1995, U.S. cert. denied, U.S. , 116 S.Ct. , 133 L.Ed.2d 83 (1995), and State v. Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986).

The State did not produce enough evidence to overcome the Appellant’s motion to dismiss on the element of reasonable fear of bodily harm or reasonable emotional distress under the applicable objective standard. The warrant reads only that:

There is probable cause to believe that on or about the date of the offense shown and in the county named above the defendant named above unlawfully and willfully did on more than one occasion harass another person, Phillip Price Shadduck, without legal purpose and the intent to: place that person in reasonable fear for the person’s safety and for the safety of the person’s immediate family. (R p 5)

The only person alleged as a victim is Dr. Shadduck - - not his wife or employees. (R p 5)