795 S.E.2d 436
N.C. Ct. App.2016Background
- Husband Steven Herndon sought a domestic violence protective order alleging wife Alison Herndon drugged his food (notably mashed potatoes) with a sleep‑inducing substance so she could leave the home to conduct an affair.
- Steven described episodes of passing out, waking with no memory of going to bed, stumbling (once breaking a mirror), rapid weight loss, and early‑morning vomiting during the period he suspected tampering.
- Steven introduced texts and other data extracted from Alison’s cellphone; Alison moved to exclude that material, claiming he bypassed the phone’s security without permission.
- At trial Alison admitted the affair; the court questioned her directly about the phone evidence after denying cross‑examination by plaintiff’s counsel and found her testimony not credible.
- The trial court entered a domestic violence protective order finding Alison intentionally drugged Steven, causing illness and incapacitation; the intermediate appeals court previously vacated on Fifth Amendment grounds but the state supreme court reversed and remanded for other issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of cellphone evidence | Cellphone texts and data obtained by husband are admissible | Alison argued husband accessed phone by bypassing security and evidence should be excluded | Any error admitting the phone evidence was harmless — outcome would be same without it |
| Sufficiency of evidence to support DVPO | Testimony, health changes, and phone evidence support DVPO | Without phone evidence there is insufficient competent evidence | Even excluding phone evidence, ample competent testimony supports findings that Alison drugged Steven and committed domestic violence |
| Trial court’s questioning and Fifth Amendment issue | Not before this court (supreme court resolved) | Alison argued threat to jail if she invoked Fifth was unconstitutional | Supreme Court held the trial court’s threat was not unconstitutional; remaining issues decided on remand |
| Standard of review for DVPO findings | Court should ensure findings supported by competent evidence | — | Findings reviewed for competent evidence; here findings were supported and sustained |
Key Cases Cited
- Kennedy v. Morgan, 221 N.C. App. 219, 726 S.E.2d 193 (2012) (explains that the trial court’s statutory “find” is a legal conclusion reviewed for adequate factual findings)
- Stancill v. Stancill, 773 S.E.2d 890 (2015) (discusses appellate review of findings of fact and conclusions of law in DVPO context)
- Williamson v. Williamson, 217 N.C. App. 388, 719 S.E.2d 625 (2011) (harmless error doctrine applied to erroneously admitted evidence in protective‑order proceedings)
- Herndon v. Herndon, 368 N.C. 826, 785 S.E.2d 922 (2016) (Supreme Court decision resolving the Fifth Amendment challenge and remanding for consideration of other appellate issues)