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NO. COA12-1150 NORTH CAROLINA COURT OF APPEALS Filed: 2 July 2013 STATE OF NORTH CAROLINA v. TRACY ALLEN POOLE, Defendant, Buncombe County No. 11CRS62234

Appeal by the State from Order entered 5 June 2012 by Judge Gary M. Gavenus in Superior Court, Buncombe County. Heard in the Court of Appeals 28 March 2013. Attorney General Roy A. Cooper III, by Assistant Attorney General LaToya B. Powell, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellee. STROUD, Judge. The State an appeals from an order entered Tracy parte him 5 June 2012 Poole violence his

dismissing ("defendant") protective

indictment violating that

charging an ex

Allen

with

domestic to

order

(DVPO)

required

surrender

firearms. We conclude that the Supreme Court case relied upon by the trial court is not controlling on the issue presented here because of subsequent statutory amendments and that prosecution

-2of defendant for violation of an ex parte order does not violate his procedural due process rights. Therefore, we reverse the

trial courts order and remand for further proceedings. I. Background

On 14 October 2011, defendants wife, Tammy Lynn Poole, filed a complaint and motion for a domestic violence protective order, alleging that defendant had showed up at her house after making repeated phone calls and banged on her door. She further

alleged that defendant possessed "several rifles and a handgun and lots of ammo" and that she felt "unsafe" and "frightened." That same day, the trial court entered an ex parte DVPO. The trial court found that defendant had placed Tammy in fear of imminent bodily harm and continued harassment "to such a level as to inflict substantial emotional distress." The trial court The

also found that defendant had threatened to commit suicide.

trial court accordingly concluded that defendant had committed acts of domestic violence, that there "is a clear danger" of acts of domestic violence against Tammy, and that "[t]he

defendants conduct requires that he[] surrender all firearms, ammunition, defendant and from gun permits." The ex and parte DVPO prohibited to

contacting

Tammy

ordered

defendant

surrender all "firearms, ammunition, and gun permits" to the

-3sheriff who served him with the DVPO. until 20 October 2011.1 On 17 October 2011 a sheriff served defendant with the DVPO. The next day, 18 October 2011, sheriffs returned to The DVPO was in effect

defendants home and discovered a shotgun. arrested for violating the DVPO and

Defendant was then for "owning,

indicted

possessing, purchasing, or receiving a firearm" in violation of a domestic violence protective order pursuant to N.C. Gen. Stat.

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