Opinion
CR-17-1134
05-29-2020
N.C. v. STATE of Alabama
Robert Theodore Ray, Fort Payne, for appellant. Steve Marshall, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
Robert Theodore Ray, Fort Payne, for appellant.
Steve Marshall, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
COLE, Judge.
On March 5, 2018, a delinquency petition was filed against N.C. in the Calhoun Juvenile Court, charging that
"[o]n or about [March 3, 2018,] ... [N.C.] did commit the crime of making a terrorist threat by threatening by any means to commit any crime of violence or to damage any property by doing any of the following: intentionally or recklessly terrorizing another person, to-wit: Jennifer Loos, Russ Waites, and several students and parents, intentionally or recklessly causing serious public inconvenience, to-wit: the police department received more than 40 phone calls from parents in fear for their children to go to school because of the Instagram post of a Columbine shooter stating that's it, in violation of [§] 13A-10-15(a) of the Code of Alabama 1975."
(C. 4.) After holding a hearing on the petition, the juvenile court found the charge in the petition to be true, adjudicated N.C. delinquent, and placed him on probation for a period of six months. (C. 18-19.) Facts and Procedural History
The evidence presented to the juvenile court established the following: Sometime in the evening on Friday, March 2, 2018, N.C., a 13-year-old student in the seventh grade at Jacksonville High School, was engaged in a private conversation on Instagram, a social-media platform, with L.H., a friend who lived somewhere in Georgia. During that private conversation, N.C. joked with L.H. because L.H. was losing "followers" to her Instagram account. N.C. then offered to "cheat" for L.H. by making new, fake Instagram accounts and having those fake accounts follow L.H.’s account. L.H. rejected N.C.’s offer.
Jacksonville High School serves grades 7 through 12, and is part of the Jacksonville City Schools system.
Because L.H. had apparently asked her Instagram followers to pose questions to her and told them that she would post those questions to her Instagram account, N.C. told L.H. that he had a question for her and asked her to post it to her account. L.H. responded, "No." N.C. wrote back, "That's it." (R. 95.) When L.H. asked N.C. what he meant, N.C. sent her an image of the Columbine gunmen in what appears to be a school cafeteria. N.C. then deleted the image from his private conversation with L.H.
The image is attached to this opinion as an Appendix.
When L.H. asked N.C. what the image meant, N.C. explained that it was only a joke. N.C. and L.H. then had the following exchange:
"[L.H.]: Ok, [N.C.], I have calmed down a bit. If you need someone to talk to, please talk to me. I am here to listen ok?
"[N.C.]: It was a joke
"[L.H.]: Ok ... But this is scary
"[N.C.] How?
"[L.H.]: You have been ‘joking’ about this for a long time and it's just so scary
"[N.C.]: It wasn't meant to be taken that way I'm very sorry
"[L.H.]: But school shootings aren't a joke
"[N.C.]: I understand that and I truly apologize.
"[L.H.]: [N.C.] it's scary
"Like really really scary
"[N.C.]: I'm very sorry.
"[L.H.]: And you have so many ‘jokes’ like that video and the shirt
"[N.C.]: I'm sorry
"Please delete it, I will not do it again.
"[L.H.]: [N.C.] ...
"[N.C.]: Please forgive me.
"It was a very stupid decision
"[L.H.]: I don't know what to do [N.C.], I don't know, this is so scary for me
"[N.C.]: I'm not going to do it again, I don't want to harm anyone.
"[L.H.]: I just don't know, there is so much pressure on me right now, I'm scared and really really stressed
"[N.C.]: [L.H.] I'm very sorry
"I was not wanting it to be taken that way.
"Please
"I'd never do that
"I promise you that was meant as a stupid joke
"I'm very very sorry
"Please forgive [me]
"[L.H.]: I'm really really scared and stressed you don't understand"
(N.C.’s Exhibit 3 (punctuation as it appears in the original).) N.C. explained to L.H. that he did not mean for the image to be taken seriously, apologized for posting the image, begged for mercy, and pleaded that he did not want to be arrested. But L.H. continued to tell N.C. that she was under a lot of "pressure" and that she had to tell someone because "[i]t was too much." (Id. ) When N.C. asked L.H. who she had told about the image, L.H. responded, "I told friends, friends I trust. I told my parents." (Id. )
Later, L.H. added other people to the conversation to give N.C. an opportunity to "explain" what he meant by the image he posted. (Id. ) N.C. told the people who were added to the conversation the following:
"I did not intend to make that a threat it was a stupid joke, I don't want to get arrested. I don't want my future to go blank. I want to live my live. Please seek mercy I will never do that again.
"I was being an idiot
"I seek mercy, I'd never do it. I know I screwed up. Please forgive me.
"It was ment as a joke but people didn't take it that way."
(N.C.’s Exhibit 3 (grammar, punctuation, and spelling as it appears in the original).)
After an exchange with the people that L.H. added to the conversation, N.C. again explained: "I'm not going to do anything! I'm not a bad person I just made a bad choice." (Id. ) One person responded to N.C.: "We know that." (Id. ) Another person in the conversation told N.C. that she would "see [him] in court buddy [waving-hand emoji ]." (Id. ) Another person wrote: "I can't undo anything. My parents know so [shrug emoji] I'm sorry about the situation but my parents don't like this at all." (Id. ) After N.C. pleaded with the group that he did not want to go to "death row," L.H. told N.C. that minors could not go to death row and that, even so, he "only made a threat." (Id. ) N.C. again assured L.H. (and the other people L.H. had invited into the conversation) that "[i]t wasn't meant like that," and L.H. responded, "We know, but changes cannot be made." (Id. )
An "emoji" is a small digital image used primarily in text messages and in social-media applications to communicate an emotion without using words.
On Sunday, March 4, 2018, at around 10:30 p.m., two days after his private conversation with L.H., N.C.’s mother brought N.C. to the Jacksonville Police Department to speak with a police officer because word had spread about the image N.C. had posted in his private conversation with L.H. While there, N.C. spoke with Jason Campbell, an investigator with the Jacksonville Police Department. According to Inv. Campbell, N.C.’s mother brought N.C. to the police department "before [the police] got too far into [their] investigation." (R. 9-10.) Before asking N.C. any questions, Inv. Campbell advised N.C. of his juvenile Miranda rights. N.C. waived those rights and spoke with Inv. Campbell.
The State introduced into evidence an audio recording of N.C.’s statement as "State's Exhibit 2," and N.C. introduced into evidence a transcript of that audio recording as "Defendant's Exhibit 1." This Court has reviewed both exhibits.
During that conversation, Inv. Campbell told N.C. that "there's a lot circulating right now about a picture supposedly you might have sent out of the Columbine school shooter." (N.C.’s Exhibit 1, p. 2.) N.C. told Inv. Campbell that he was "talking with a girl from Georgia" on Instagram and that he sent her the picture "thinking she would take it as a joke" because he was "trying to make [her] laugh." (N.C.’s Exhibit 1, pp. 6-7.) N.C. explained to Inv. Campbell that "everyone was joking about it last year," and that he "thought it would really be nothing and she would take it as a joking way, but, apparently, she thought that [he] was going to do something." (N.C.’s Exhibit 1, p. 5.) N.C. told Inv. Campbell that he was "not in possession of guns or nothing" and that he "realized it was a huge mistake." (Id. ) N.C. also told Inv. Campbell that some of the girls who were in the conversation "have been messing with [him] since last year"--that "they've been bullying and all that." (N.C.’s Exhibit 1, p. 9.) N.C. also explained that he had no ill will toward anyone and that he had never thought of harming anyone. (Id. at 11.)
Additionally, N.C.’s mother explained to Inv. Campbell that one of the girls who was in the group chat with N.C. "started a group chat that says, ‘Stay safe, folks, because [N.C.]--’ This girl told--After [N.C.] sent that picture, she told everybody that [N.C.] was going to shoot up the school, and from there, it just exploded." (N.C.’s Exhibit 1, p. 12.)
At the hearing on N.C.’s petition, Inv. Campbell testified about his investigation into N.C.’s conversation with L.H. According to Inv. Campbell, the police department received "calls from the community, concerned citizens were calling the police department at an alarming rate" and "[e]ven some parents came to the police department wanting [them] to demand some action on this." (R. 8.) Inv. Campbell explained that the outcry concerned a post on a social-media account--namely, that N.C. had posted in a conversation a picture "of the Columbine shooter in the school during the shooting of the school." (R. 9.) Inv. Campbell then testified about N.C.’s mother bringing N.C. to the police department and that he received their permission to search N.C.’s house. (R. 28.) Inv. Campbell said that the police found nothing of interest at N.C.’s house. (R. 28.)
Inv. Campbell further testified that they had contacted the administration at N.C.’s school and "had planned on having off-duty officers stay over from the third shift to be in the schools." (R. 31.) He also explained that they were going to have "some first shift guys to actually come in to help [them] to make sure that [they] didn't let [N.C.] get to the school that morning, Monday morning, and pick him up for questioning." (R. 32.) However, Inv. Campbell said that none of that was necessary after N.C.’s mother brought him to the police. (R. 32.)
On cross-examination, Inv. Campbell admitted that he did not "know who else put [the picture] on social media, but it got out in social media like wildfire." (R. 37.) Inv. Campbell also explained that, although N.C. posted the picture in a private conversation with L.H., Inv. Campbell never directly spoke with L.H. (R. 39.) When pressed about what precise threat N.C. had made, Inv. Campbell testified that it was that N.C. was going to "shoot up the school." (R. 41.) However, Inv. Campbell testified that he did not know who N.C. was upset with or whether the threat that N.C. made was directed at L.H.’s school in Georgia or some other school; he did not "know what school [N.C.] was talking about." (R. 42.) Finally, Inv. Campbell conceded that he did not "think [N.C.] was directing the picture at [L.H.] I don't. I think [N.C.] was trying to get attention from [L.H.]" (R. 42.)
Russ Waits, the principal at Jacksonville High School, also testified at N.C.’s hearing. Waits testified that, on Saturday night, March 3, 2018, he "started receiving text messages that there was activity on Facebook; parents, students expressing concern over a threat that was perceived as directed at the school." (R. 59.) Waits explained that "before the night was out on that Saturday night, [he] think[s] [he] had about fifteen different people contact [him]." (R. 60.) Waits said that, in response to this "perceived threat," he "made the decision to increase the police presence on campus the following Monday morning" to "provide a calming effect." (R. 60.) Waits noted that "[t]he absenteeism on that Monday was way higher than normal," but he could not provide a specific number of students who were absent from school. (R. 61.) Waits described the activity at school on that Monday as a "revolving door"--that is, "people that were worried about the threat that didn't come" and "people that didn't know about [the threat] that got there and started hearing about it and they started checking out." (R. 61.) Waits further explained that the threat disrupted the activities of the school because "it consumed the administrative and office staff completely" and it took about "two weeks" for things to return to normal. (R. 61-62.) Waits also said that he was unaware of "any prior incidents with [N.C.] that he may have made at school involving similar ideations." (R. 62.)
Waits's name is spelled two different ways in the record on appeal. In the petition charging N.C. with making a terrorist threat, Waits's name is spelled "Waites" and in the reporter's transcript it is spelled "Waits."
Thereafter, the State rested, and N.C. moved for a judgment of acquittal. (R. 74-80.) The juvenile court denied N.C.’s motion. (R. 80.)
N.C. then testified in his own behalf. (R. 83.) N.C. explained that he had sent L.H. a private message on Instagram on a Friday night and that he was making fun of her for losing Instagram followers. (R. 87.) N.C. said that, when he sent L.H. the image of the Columbine shooters, he did it as a joke because the year before "everyone in sixth grade would joke about school shootings" and he "thought it would have been funny to send it to her because she would have joked about it last year." (R. 89.) N.C. also said that no one who joked about school shootings the year before got in trouble for what they said. (R. 100.) N.C. further explained that, when he realized L.H. did not take the image as a joke, he immediately deleted it, explained it was a joke, and apologized to her. (R. 98.)
At the close of the hearing, the juvenile court took the case under advisement, and, on August 10, 2018, issued an order finding the charge in the petition to be true and adjudicating N.C. delinquent. N.C. then filed a timely notice of appeal.
Discussion
On appeal, N.C. contends that the juvenile court erred
"when it held N.C. to be a delinquent for making a terrorist threat because the State failed to provide competent, material, and relevant evidence supporting that [N.C.] was guilty beyond a reasonable doubt where [N.C.] jokingly sent an image of the Columbine shooters to a former classmate during a private conversation on the Instagram social media application, and immediately informed his friend that the image was merely a joke and not meant to be serious."
(N.C.’s brief, p. 12.) In other words, N.C. argues that the State's evidence was insufficient.
This Court has explained that
" ‘[t]he general standard for assessing the sufficiency of the evidence is applicable to our review of juvenile proceedings. See J.W.B. v. State, 651 So. 2d 73, 75 (Ala. Crim. App. 1994) (applying " ‘[t]he general standard by which we review the evidence’ " to a juvenile proceeding (quoting Robinette v. State, 531 So. 2d 682, 687 (Ala. Crim. App. 1987) )).
" ‘ " ‘ "In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution." ’ Ballenger v. State, 720 So. 2d 1033, 1034 (Ala. Crim. App. 1998), quoting Faircloth v. State, 471 So. 2d 485, 488 (Ala. Crim. App. 1984), aff'd, 471 So. 2d 493 (Ala. 1985). ‘ "The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt." ’ Nunn v. State, 697 So. 2d 497, 498 (Ala. Crim. App. 1997), quoting O'Neal v. State, 602 So. 2d 462, 464 (Ala. Crim. App. 1992). ‘ "When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision." ’ Farrior v. State, 728 So. 2d 691, 696 (Ala. Crim. App. 1998), quoting Ward v. State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)."
" ‘ Oliver v. City of Opelika, 950 So. 2d 1229, 1230 (Ala. Crim. App. 2006).’
" J.M.A. v. State, 74 So. 3d 487, 492 (Ala. Crim. App. 2011)."
C.L.F. v. State, 104 So. 3d 291, 294 (Ala. Crim. App. 2012).
"Because this is a juvenile matter, in which the juvenile court judge is the trier of fact, we keep the following principles in mind:
" ‘Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court's conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So. 2d 442 (Ala. 1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So. 2d 415 (Ala. 1994).’
" Ex parte Agee, 669 So. 2d 102, 104 (Ala. 1995). See R.L.L. v. State, 564 So. 2d 474, 476 (Ala. Crim. App. 1990) ; C.D.U. v. State, 552 So. 2d 178, 180 (Ala. Crim. App. 1989) (‘When evidence is presented ore tenus, the court's decision must be given every reasonable presumption and we will not overturn its finding "if it was supported by credible evidence unless it was palpably wrong." Department of Human Res. v. Middleton, 519 So. 2d 540 (Ala. Civ. App. 1987).’). Furthermore,
" ‘ "Section 12-15-65(e), Ala. Code 1975, requires that an adjudication of delinquency be supported by ‘proof beyond a reasonable doubt, based on competent, material[,] and relevant evidence.’ The credibility of witnesses and the truthfulness of testimony in delinquency proceedings is for the trier of fact to determine. C.T.L. v. State, 599 So. 2d 94 (Ala. Crim. App. 1992). Furthermore, in resolving questions
of sufficiency of the evidence, this court must view the evidence in the light most favorable to the state. Id." ’
" R.B.H. v. State, 762 So. 2d 382, 383 (Ala. Crim. App. 1999), quoting A.A.G. v. State, 668 So. 2d 122, 124 (Ala. Crim. App. 1995)."
T.L.S. v. State, 153 So. 3d 829, 836 (Ala. Crim. App. 2013).
Here, N.C. was charged with making a terrorist threat pursuant to § 13A-10-15(a)(1)a and c, Ala. Code 1975, which provide as follows:
Section 13A-10-15, Ala. Code 1975, was amended effective July 1, 2018. See Act No. 2018-553, Ala. Acts 2018. Because N.C.’s actions occurred before the effective date of the amendment to the terrorist-threat statute, the pre-amendment statute applies to this case.
"(a) A person commits the crime of making a terrorist threat when he or she threatens by any means to commit any crime of violence or to damage any property by doing any of the following:
"(1) Intentionally or recklessly:
"a. Terrorizing another person.
"....
"c. Causing the evacuation of a building, place of assembly, or facility of public transportation, or other serious public inconvenience."
At oral argument, the State argued that the "serious public inconvenience" also includes N.C. intentionally or recklessly disrupting school activities pursuant to § 13A-10-15(a)(1)b, Ala. Code 1975. N.C.’s delinquency petition, however, does not allege that N.C. disrupted school activity. Thus, we do not consider whether N.C.’s actions violated § 13A-10-15(a)(1)b, Ala. Code 1975.
In short, it is a crime to "threaten to commit a violent crime or to damage property in order to ‘intentionally or recklessly’ 1) terrorize another person ... or 3) cause a serious public inconvenience (as illustrated by, but not limited to, causing the evacuation of a building, place of assembly, or facility of public transportation)." Survey of 2000 Alabama Legislation, 52 Ala. L. Rev. 1097, 1118 (2001).
Subsections (1) and (3) of § 13A-2-2, Ala. Code 1975, respectively, explain that "[a] person acts intentionally with respect to a result or to conduct described by a statute defining an offense, when his purpose is to cause that result or to engage in that conduct," and that "[a] person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists." (Emphasis added.) To be reckless, "[t]he risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." § 13A-2-2(3), Ala. Code 1975.
Here, the State charged N.C. with making a threat during his private conversation with L.H. to commit a crime of violence or to damage property and charged that N.C.’s threat "intentionally or recklessly" terrorized Jennifer Loos, Russ Waits, and several unnamed "students and parents." In the alternative, N.C. was charged with "intentionally or recklessly causing serious public inconvenience" because "the police department received more than 40 phone calls from parents in fear for their children to go to school because of the Instagram post of a Columbine shooter stating that's it." (C. 4.) To put it another way, the State charged N.C. with terrorizing several people (Loos, Waits, and unnamed students and parents) and causing a "serious public inconvenience" through a communication he made to a third party (L.H.). N.C. argues on appeal that the State did not prove "that the private message sent by N.C. to L.H. was made for the purpose of terrorizing another." (N.C.’s brief, p. 13.) We agree with N.C.
Other than in the delinquency petition charging N.C. with making a terrorist threat, Loos is not mentioned in the record on appeal. It is unclear who Loos is or how N.C. terrorized her.
In Smoak v. State, 186 So. 3d 493 (Ala. Crim. App. 2015), this Court held that "a terrorist threat may be conveyed to a victim by a third person where the defendant ‘intended or expected it to be conveyed to the victim,’ " and explained that "the threat must be ‘communicated in such a way as to support the inference that the speaker intended or expected it to be conveyed to the victim.’ " 186 So. 3d at 499-500 (quoting John P. Ludington, Validity and Construction of Terrorist Threat Statutes, 45 A.L.R. 4th 949, Threats Communicated to Third Persons § 24 Cumulative Supplement).
In Smoak, Smoak's wife received a telephone call from Smoak's son's school, informing her that their son had "misbehaved at school and was to be punished by a five-day suspension." Smoak, 186 So. 3d at 496. Shortly after that telephone call, Smoak's wife telephoned the school and told the school secretary that Smoak "was very mad and that he was on his way to the school with a gun." Id. The secretary immediately notified the principal, who then spoke by telephone with Smoak's wife. Id. According to the principal, Smoak's wife explained that Smoak "was very angry about their son's suspension and that he was on his way to the school with a shotgun and that the school needed to be locked down." Id. Thereafter, the principal telephoned the police, and the school was placed on lockdown. Id. at 497. When Smoak arrived at the school, the police "had their weapons drawn before Smoak got ou[t] of his vehicle," and, when Smoak got out of his vehicle, Smoak told the police to shoot him. Id. The police found in Smoak's vehicle a loaded shotgun "leaning on the front driver's seat with the barrel resting on the front passenger floorboard." They also found "three shotgun shells" in Smoak's pocket. Id. Smoak was arrested for making a terrorist threat and was convicted of that offense at trial. Id.
Smoak argued on appeal that the State's evidence was insufficient to support his conviction for making a terrorist threat. This Court agreed and reversed Smoak's conviction, reasoning:
"The evidence presented in this case was insufficient to support finding that Smoak made a threat. Mrs. Smoak did not testify at trial. It is undisputed that Mrs. Smoak telephoned the school and informed the principal that Smoak was angry and that he was headed to the school with a shotgun. However, the testimony before this Court regarding her comments presents only Mrs. Smoak's perception of Smoak's conduct. Mrs. Smoak did not say that Smoak verbalized a threat or that he said that he was going to the school with his loaded shotgun, or say that he said he intended to shoot anyone. Mrs. Smoak merely relayed her perception that Smoak had displayed an outburst of anger and her belief regarding his intentions. An outburst of anger is not, in and of itself, a threat and has no intentional or reckless consequences in the context of a terrorist threat. It is clear that Mrs. Smoak prudently and properly acted on her perceptions and informed the school that Smoak was on his way to the school with a loaded shotgun and that [the principal] and the police properly responded to Mrs. Smoak's information. The possibility
that Smoak would arrive with a loaded shotgun was reason to lock down the school. Moreover, the jury could find, as it did, that Smoak's having a shotgun was evidence of his intent to commit a violent act at a school. However, there was no evidence--as it was characterized at trial--indicating that Smoak intended to threaten anyone or that his conduct at his home indicated that he was aware but that he disregarded the risk that his conduct would cause fear resulting in the lockdown of the school."
Smoak, 186 So. 3d at 500 (footnotes omitted). This Court further noted that, what the State's evidence showed was "more akin to criminal negligence--Smoak should have perceived, but failed to perceive, that his conduct would cause fear resulting in the lockdown of the school." Smoak, 186 So. 3d at 500 n.7 (citing § 13A-2-2(4), Ala. Code 1975 ).
Here, the State's evidence was insufficient to show that N.C.’s decision to post a picture of the Columbine school shooters in a private conversation with L.H., who was in a different state, was intended or expected to be conveyed to Loos, Waits, and unnamed students and teachers, or that N.C. was aware of but disregarded the risk that his conduct would result in a "serious public inconvenience" when parents made 40 telephone calls to the Jacksonville Police Department.
As set out above, the State's evidence showed that N.C. (a 13-year-old who lived in Alabama) was engaged in a private conversation with L.H. (a friend who lived in Georgia and did not attend school with N.C.) on Instagram. During that private conversation, N.C. and L.H. discussed the fact that L.H. had lost followers to her Instagram account, which L.H. denied had happened, and N.C. offered to make fake accounts to inflate her number of followers, an offer L.H. rejected. Thereafter, N.C. asked L.H. if she would post a question that he was going to ask her to her Instagram account; L.H. told him, "No." In response, N.C. typed the phrase "That's it," and, when L.H. asked him what he meant, N.C. responded by posting an image from the surveillance video of the Columbine school shooting, showing a gunman who appears to be in a school cafeteria. When N.C. saw that L.H. did not take his post as a joke, N.C. deleted the image, explained to L.H. that it was only a joke, and apologized for posting it. L.H., however, told her parents and other friends that N.C. had sent her the image. Although L.H. later acknowledged to N.C. that she knew that he would not carry out a school shooting, she told him that "changes cannot be made."
The State did not present any evidence, however, showing that, when N.C. sent L.H. the image, he either "intended or expected" L.H. to convey that image to Loos, Waits, and unnamed students and parents or that it would terrorize Loos, Waits, and unnamed students and parents. Additionally, the State did not present any evidence showing that, when N.C. sent L.H. the image, he either intended the image to cause a serious public inconvenience or that he was aware of but disregarded the risk that his conduct would result in a serious public inconvenience.
Indeed, although the State viewed N.C.’s post as a threat to carry out a school shooting in Jacksonville, Alabama, the uncontradicted evidence at N.C.’s hearing showed that, when N.C. posted the picture in his conversation with L.H., neither N.C. nor L.H. had mentioned any school, much less N.C.’s school in Alabama, or school shootings. N.C. immediately told L.H. that his post was meant to be a joke, and he clarified this well before L.H. told anyone about the image. Additionally, L.H.’s own comments to N.C. after she told people that N.C. had sent her the image showed that she did not believe that N.C. would carry out a school shooting. The evidence also established that, even if the post was regarded as threatening, Inv. Campbell could not tell whether N.C.’s post meant that he was threatening L.H.’s school in Georgia or some other school.
Although the State argues that the evidence was sufficient to support N.C.’s adjudication because "N.C.’s terrorist threat caused disruption through the Jacksonville community" and because "school officials" and the "police did not consider it a joke" (State's brief, p. 8), the State's argument is focused in the wrong direction. Whether someone has committed the crime of making a terrorist threat does not turn on how the community reacts to a "threat" or how people perceive a "threat" but, rather, whether the actor made a threat to commit a crime of violence or to damage property by "intentionally or recklessly" terrorizing another person or causing a serious public inconvenience. In other words, the proper focus here is on the mental state of the actor when the comment, or in this case the Instagram post, is made. As we recognized in Smoak, although it is prudent for people, law-enforcement officers, and schools to take any perceived threat seriously, a perceived threat does not always establish the appropriate mental state for proving that the actor made a terrorist threat under § 13A-10-15, Ala. Code 1975.
As was the case in Smoak, here, L.H. merely relayed to other people the fact that N.C. sent her the image and relayed to other people what she thought his intentions might be based on that image. N.C. never communicated to L.H. that he was going to carry out a school shooting or that he was going to harm anyone, especially not Loos, Waits, or any other person in Alabama. Without L.H. testifying, and it appearing that no witnesses for the State ever talked to her, the record merely reflects that L.H.’s perception of what could occur, which she conveyed to others, extended well beyond what was actually conveyed in the well documented private Instagram conversation. N.C.’s decision to send his friend in Georgia a picture of the Columbine school shooters, while imprudent, without more, does not establish that he "intentionally or recklessly" meant for that picture to be conveyed to Loos, Waits, or unnamed students and parents in Alabama. In fact, N.C.’s immediate response that it was a "joke" and to delete the post to the best of his ability, rather than forward it to others, showed the opposite intent. Nor does N.C.’s decision to send the picture show that N.C. "intentionally or recklessly" caused a serious public inconvenience.
The State also argues that N.C.’s "picture is worth a thousand words" and that his post "was sufficient to cause fear in the person who N.C. was ‘chatting’ with because [s]he felt threatened based on a previous incident that involved N.C." (State's brief, pp. 7-8.) But the State did not charge N.C. with intentionally or recklessly terrorizing L.H. Rather, the State charged N.C. with intentionally or recklessly terrorizing Loos, Waits, and unnamed students and parents and intentionally or recklessly causing a serious public inconvenience. As explained in Smoak, when the State alleges that a terrorist threat is conveyed to a third person (in this case L.H.) and the threat is allegedly directed toward other people (in this case Loos, Waits, unnamed students and parents, and the public), the State must show that the threat was " ‘communicated in such a way as to support the inference that the speaker intended or expected it to be conveyed to the victim.’ " 186 So. 3d at 499-500 (emphasis added). Although a broad definition of "intended or expected" is required so as to include any situation that someone might reasonably foresee that the recipient of the message may convey the alleged threat to the victim, even if the threatening comment was otherwise made in confidence, it was not reasonably foreseeable that N.C.’s message would be shared with others, possibly even before N.C. had a chance to explain the intent of his communication. The State's evidence fell short of proving that N.C. intended or expected L.H. to convey his post to Loos, Waits, unnamed students and parents, and the public.
To be clear, we do not hold today that posting a threatening picture or words to a social-media account, including one posted in a private conversation, is never sufficient to establish a prima facie case of making a terrorist threat. In some circumstances it may be. But, under the facts of this case, N.C.’s conduct does not show that he "intentionally or recklessly" terrorized the people listed in his delinquency petition or that he "intentionally or recklessly" caused a serious public inconvenience. At most, the State's evidence showed that N.C.’s conduct was negligent --i.e., he should have perceived, but failed to perceive, that posting a picture from the Columbine school shooting would terrorize Loos, Waits, and unnamed students and parents and would cause a serious public inconvenience, see § 13A-2-2(4), Ala. Code 1975.
Accordingly, the State failed to establish a prima facie case of making a terrorist threat, and N.C.’s delinquency adjudication must be reversed and a judgment of acquittal rendered.
REVERSED AND JUDGMENT RENDERED.
Windom, P.J., and Kellum, McCool, and Minor, JJ., concur.
APPENDIX