Opinion
No. COA11–1321.
2012-08-21
STATE of North Carolina v. Phillip Lance BENHAM.
Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State. Daniel F. Read, for defendant-appellant.
Appeal by defendant from judgment entered 1 July 2011 by Judge Joseph E. Turner in Mecklenburg County Superior Court. Heard in the Court of Appeals 2 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State. Daniel F. Read, for defendant-appellant.
CALABRIA, Judge.
Phillip Lance Benham (“defendant”) appeals from a judgment entered upon a jury verdict finding him guilty of misdemeanor stalking. Since the variance between the warrant for defendant's arrest and the jury instructions was prejudicial error, we grant a new trial.
I. Background
At the time of trial, defendant was employed as a pastor and missionary and as executive director of Operation Save America (“OSA”). Defendant believed in OSA's mission which was “to bring the gospel of Jesus Christ to every place where there's a manifestation of the gates of hell, whether it be an abortion mill ... gay pride events” or the city councils in Washington, D.C. Defendant and other members of OSA participated in protests outside abortion clinics in Charlotte, North Carolina and in other places around the country. Their goal was to “intervene and try and rescue these children and these moms before they get there.”
Dr. Curtis Lee Flood (“Dr.Flood”), the victim, is a physician who has been specializing in obstetrics-gynecology (“ob-gyn”) in Charlotte, for approximately twenty years. Dr. Flood owned his own practice with another ob-gyn specialist. In the summer of 2009, Dr. Flood also treated patients at three clinics in Charlotte: A Preferred Women's Healthcare (“PWH”), Carolina's Clinic for Women (“CCW”), and Family Reproductive Health (“FRH”). He treated patients at both PWH and FRH between one to four days per month for a few hours each time, where he administered birth control, and rendered services such as: abortions, pap smears, and breast exams. At his own practice, Dr. Flood mainly treated high risk and indigent care patients. All abortion services performed by Dr. Flood were consistent with state law. While treating patients at the clinics, Dr. Flood observed protestors from OSA, which made him feel uncomfortable and concerned.
In the summer of 2009, defendant visited Dr. Flood's office on several occasions because he wanted to meet Dr. Flood. On one of the visits to Dr. Flood's office, defendant brought a “WANTED poster” displaying Dr. Flood's photograph, name and information. The poster stated “WANTED: [Flood and Harris] by Christ, to Stop Killing Babies.” Defendant gave the poster to Janice Hutto (“Hutto”), a certified medical assistant employed by Dr. Flood and requested a meeting with Dr. Flood. When Dr. Flood refused to speak to defendant, defendant gave an employee his phone number requesting that Dr. Flood call him “when he quits doing [abortions] or if he wants to talk.” Defendant threatened to distribute the posters if Dr. Flood continued performing abortions at the clinics. Dr. Flood authorized an employee to contact defendant to inform him that abortions were not performed at his practice. At that time, Dr. Flood declined to initiate legal action hoping that if he ignored defendant he would go away.
On 5 February 2010, when defendant discovered Dr. Flood continued performing abortions at the clinics, he returned to Dr. Flood's office. Defendant, accompanied by approximately five to seven other individuals, handed out posters, took photographs and asked to speak with Dr. Flood. Defendant placed the WANTED posters in the stairwells, elevators and parking deck. Dr. Flood again refused to meet with him, and instructed Hutto to call security. Hutto called security and asked defendant to leave, but he refused and “kept talking about Dr. Flood being a murderer.” When Hutto contacted security a second time, they arrived as defendant was leaving. When defendant distributed the WANTED posters, Dr. Flood became “extremely concerned” because he knew that the WANTED posters were similar to the type that had been distributed just prior to the deaths of other doctors. Dr. Flood informed his wife, May Kay James (“James”), that defendant visited his office several times and distributed the posters.
The next day, while Dr. Flood treated patients at FRH, James contacted Dr. Flood and informed him that people were passing out the WANTED posters in their neighborhood. James saw individuals walking around knocking on doors and passing out flyers as well as several cars in the cul-de-sac. Two flyers had been posted on Dr. Flood's house. James also saw that someone driving a van had taken a picture of Dr. Flood's home.
Dr. Flood believed that when defendant distributed the posters, the posters escalated from a mere warning and characterized this transition as a “weaponization.” After defendant “weaponized” the WANTED poster, Dr. Flood believed the situation was intensifying and that the poster was likely a “call for [his] death.” Dr. Flood called Detective Milton Harris (“Detective Harris”) to report defendant's activities and requested that law enforcement investigate the situation. Harris investigated and a warrant was issued for defendant's arrest. The warrant charged defendant with stalking and intent to cause emotional distress and stated defendant “unlawfully, and willfully ... on more than one occasion harrass[ed] without legal purpose and with the intent to place that person in reasonable fear for [Dr.] Flood.” At the time of trial, defendant was ordered to stay away from Dr. Flood.
On 8 November 2010, in Mecklenburg County District Court, the trial court found defendant guilty of misdemeanor stalking and sentenced defendant to sixty days in the custody of the Sheriff of Mecklenburg County. His sentence was suspended and he was placed on supervised probation for twenty-four months. Defendant appealed to Superior Court.
On 1 July 2011, in Mecklenburg County Superior Court, the jury returned a verdict finding defendant guilty of misdemeanor stalking. Although defendant was sentenced to seventy-five days in the North Carolina Department of Correction, his sentence was suspended and he was placed on supervised probation for eighteen months. As a special condition to defendant's probation, the trial court also restricted defendant's interaction with Dr. Flood and his practice. Specifically, the trial court ordered defendant to “stay away from Penninsula Community.” He was not to be found within 500 feet of Flood & Harris offices, PWH, or FRH. He was also ordered not to produce or distribute WANTED posters of Dr. Flood or any other literature referencing Dr. Flood. He also was to delete any reference to Dr. Flood on the OSA website. Defendant appeals.
II. Variance Between Warrant and Jury Instructions
Defendant argues that since there were no references to Dr. Flood's family in the warrant, the trial court erred by including the clause “the safety of that person's immediate family” when instructing the jury that to find defendant guilty of the crime of stalking, the State had to prove that defendant not only placed Dr. Flood in fear for his own safety but also the safety of his immediate family. We agree.
It is well-established in North Carolina “that a defendant must be convicted ... of the particular offense charged in the warrant or bill of indictment[,]” State v. Bowen, 139 N.C.App. 18, 24, 533 S.E.2d 248, 252 (2000) (citation omitted). Therefore, all references to indictments will also apply to warrants for arrest. However, defendant cites no cases, and we can find none, where our Courts have examined a variance between a warrant for defendant's arrest and the jury instructions in the context of stalking. While a bill of indictment may be amended, our Supreme Court has found that the indictment “may not be amended in a manner that substantially alters the charged offense.” State v. Silas, 360 N.C. 377, 379–80, 627 S.E.2d 604, 606 (2006). “[T]he failure of the allegations to conform to the equivalent material aspects of the jury charge represents a fatal variance, and renders the indictment insufficient to support that resulting conviction.” State v. Oakman, 191 N.C.App. 796, 799, 663 S.E.2d 453, 456 (2008) (citation omitted).
To determine whether a variance between the trial court's jury instruction and the allegations in a warrant for defendant's arrest or bill of indictment constitutes “prejudicial error requiring reversal,” the Court “must look to the purposes served by a bill of indictment.” State v. Tollison, 190 N.C.App. 552, 560, 660 S.E.2d 647, 653 (2008) (citation omitted). Our Supreme Court has recognized that the purposes of the constitutional provisions of an indictment are to:
(1) ... identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial [;] and (4) to enable the court, on conviction or plea of nolo contendere or guilty[,] to pronounce sentence according to the rights of the case.
State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600 (2003) (citation omitted).
In the instant case, the only issue to determine regarding prejudice is whether the variance prevented defendant from preparing a defense.
In State v. Hines, although the defendant was indicted for aggravated assault which alleged that the defendant used a blunt force object to harm the victim, the jury was instructed that they could find the defendant guilty if they found that he intentionally struck the victim in the head, or intentionally assaulted the victim “ by pulling off in the car when part of [the victim's] body was in the car or near enough to be hit by the car as it pulled away.” 166 N.C.App. 202, 207, 600 S.E.2d 891, 895–96 (2004). The Court vacated the judgment because it found that the variance “substantially affected [the] defendant's ability to prepare a defense” and that the instruction “allowed the jury to convict [the] defendant on a theory of assault for which [he] had not been indicted.” Id. at 207, 600 S.E.2d at 896.
In Silas, the State amended an indictment for felonious breaking and entering with the intent to commit murder to conform to the defendant's testimony at trial that he intended to harm but not kill the victims. 360 N.C. at 378–79, 627 S.E.2d at 605–06. The trial court notified the parties during the charge conference that it would instruct the jury that they had to find the defendant guilty of one of two underlying felonies, either: “assault with a deadly weapon with intent to kill inflicting serious injury” or “assault with a deadly weapon inflicting serious injury” to convict the defendant of felonious breaking and entering. Id. at 379, 627 S.E.2d at 606. On appeal, even though the indictment was amended, the Court held that the State's amendment of the indictment was error because the amendment “prejudiced [the] defendant as he relied upon the allegations in the original indictment to his detriment in preparing his case....” Id. at 382–84, 627 S.E.2d at 608.
In State v. Brown, the first-degree kidnapping indictment included the theory of facilitation of a felony and that the victim was not released in a safe place, but when instructing the jury, the trial court instructed on the theory that the victim was terrorized and sexually assaulted. 312 N.C. 237, 247, 321 S.E.2d 856, 862 (1984). The Court determined that the judge's instructions which allowed the jury to “predicate guilt on theories of the crime which were not charged in the bill of indictment” were erroneous and amounted to plain error. Id. at 249, 321 S.E.2d at 863.
Defendant's offense or indictment that varied from the trial court's instructions to the jury was for stalking. To prove misdemeanor stalking the State must show that defendant
willfully on more than one occasion harasses another person without legal purpose or willfully engages in a course of conduct directed at a specific person without legal purpose and the defendant knows or should know that the harassment or the course of conduct would cause a reasonable person to do any of the following:
(1) Fear for the person's safety or the safety of the person's immediate family or close personal associates.
(2) Suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment.
N.C. Gen.Stat. § 14–277.3A(c) (2011).
In the instant case, according to the warrant for defendant's arrest, defendant “unlawfully, and willfully ... on more than one occasion harass[ed] without legal purpose and with the intent to place that person in reasonable fear for Curtis Flood.” At the charge conference the trial court proposed the stalking instruction to say:
The [c]ourt: If you find from the evidence beyond a reasonable doubt that on or about the alleged dates the defendant willfully, on more than one occasion, harassed the victim without legal purpose, and the defendant at that time knew or should have known that the harassment would cause a reasonable person to fear for that person's safety or the safety of that person's immediate family or close personal associates, it would be your duty to return a verdict of guilty.
...
[Defense counsel]: ... I would object as to language in the stalking statute or the stalking jury instruction. Your Honor, in particular ... the warrant at issue says reasonable fear for [Dr .] Flood.
So that particular person, Your Honor, I believe at least in the 2A prong of the statute which should read the defendant at the time knew or should have known that harassment would cause a reasonable person to fear for that person's safety. That's what's alleged in the warrant.
As far as family and close associates, it's not been alleged in the warrant. I don't believe that there's been testimony—well, I would argue that's not what's alleged in the warrant and I would be defending against at this particular time.
...
[The State]: The State would just request that that entire fear for himself, his family or their close associates be included. I think the language of the warrant ... does not necessarily have to include each and every single thing that is included under the statute. That's not required.
The nature of the warrant is just to put the defendant on notice of what they are charged against. You heard testimony, Your Honor, and the defense has defended against testimony indicating that he feared for personal associates as well as family.
He has defended against that; he asked questions on cross-examination regarding his close personal associates. Did you see a weapon, you really actually had a pleasant conversation with the defendant. He has been defending against that which would indicate he has been placed on notice for that.
We would request respectfully, Your Honor, that the jury instruction remain the same.
...
[Defense Counsel]: ... [W]hat has to be on this warrant is what gives us notice that we can present a viable defense.
What's on here, Judge, is ... a reasonable fear for ... Dr. Flood.... And a person in reasonable fear for [Dr. Flood], it doesn't say for anybody else. So to suggest that a question I asked about a particular response that someone has given, means we've defended against that point I think is an illogical jump to conclusion. That is not accurate.
Just because we're asking about evidence, clarifying evidence, doesn't mean we're proving or disproving the crime that [defendant] has been charged with. He has ... not been accused of harassing the family or harassing any close associates.
...
So, Your Honor, we believe that to add that language in there would just make it easier for the State to try to say look at everything that's happened, everyone was afraid, [defendant] is now guilty of stalking this one person.
... [W]e would respectfully ask that it be limited in scope to what this warrant says, as well as to what we were put on notice of, which was [Dr.] Flood, and to allow that to be submitted to the jury for consideration.
...
The [c]ourt: ... I think it's reasonable that there's been evidence that the staff was nervous, but there is no evidence from Dr. Flood that he feared for their safety.
But I do think it's reasonable to expect that to place his family in fear at his residence, that places him in fear of both his own and his family's safety. So I think what I will do is ... would cause a reasonable person to fear for that person's safety or the safety of that person's immediate family. I think that's a reasonable extension of the language of the warrant.
After hearing the parties' arguments, the trial court agreed with defendant to limit the scope of the instruction and did not include Dr. Flood's close personal associates with Dr. Flood and his family. However, the trial court determined that it was reasonable to expect that Dr. Flood not only feared for his own safety, but also feared for his family's safety, therefore, even though the State never made a motion to amend the warrant to include the language about Dr. Flood's family, the trial court included Dr. Flood's family in the instruction. The jury was instructed that according to the second part of the stalking statute, the State had the burden to prove that defendant “knew or should have known that the harassment would cause a reasonable person to fear for that person's safety or the safety of that person's immediate family.”
The jury charge included the phrase fear for the safety of Dr. Flood's family, while the warrant only alleged that defendant placed Dr. Flood in fear for his own safety. Therefore, the jury was instructed to find defendant guilty on a theory not included in the warrant. Furthermore, defendant was unable to prepare for trial on the theory that Dr. Flood was placed in fear for his family. The State claims that the warrant provided for all the elements of the crime charged and thus defendant knew the conduct with which he was charged. However, the State never made a motion to amend the warrant and therefore the warrant was not amended. Since defendant was not informed of the instruction regarding Dr. Flood's family until after the close of the evidence, he did not have an opportunity to question either Dr. Flood or James about whether Dr. Flood feared for his family's safety. Therefore, the variance between the warrant and the jury instructions was prejudicial error and we grant a new trial.
III. Relevant Evidence
Defendant alleges the trial court erred in allowing testimony of Dr. George Tiller's (“Dr.Tiller”) murder and the poster associated with Dr. Tiller, as such evidence was irrelevant and unduly inflammatory. We disagree. Although we have ordered a new trial on other grounds, this issue is likely to reoccur and therefore will address it on appeal.
This Court reviews questions of relevancy de novo, but accords deference to the trial court's ruling. State v. Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 223,cert. denied,––– U.S. ––––, 181 L.Ed.2d 529 (2011) (“A trial court's rulings on relevancy are technically not discretionary, though we accord them great deference on appeal.”). “The admissibility of evidence is governed by a threshold inquiry into its relevance. In order to be relevant, the evidence must have a ‘logical tendency to prove any fact that is of consequence’ in the case being litigated.” State v. Griffin, 136 N.C.App. 531, 550, 525 S.E.2d 793, 806 (2000) (citations omitted).
To prove stalking, the State has the burden to prove that defendant “willfully on more than one occasion harasses another person without legal purpose ... and the defendant knows or should know that the harassment ... would cause a reasonable person to ... (1) Fear for the person's safety or the safety of the person's immediate family or close personal associates.” N.C. Gen.Stat. § 14–277.3A(c) (2011). A “reasonable person” is “[a] reasonable person in the victim's circumstances.” N.C. Gen.Stat. § 14–277.3A(b)(3) (2011).
In the instant case, the State introduced evidence regarding Dr. Tiller, a doctor who performed abortions and was murdered on 31 May 2009 in Wichita, Kansas. Detective Harris became aware of a WANTED poster concerning Dr. Tiller in February 2009 (“the Tiller poster”). When Dr. Flood contacted Detective Harris to investigate defendant, he specifically mentioned Dr. Tiller's murder. Dr. Flood was concerned because other doctors had been murdered after similar WANTED posters were distributed prior to their deaths.
The State's purpose for introducing the Tiller poster was to show that Dr. Flood's fear regarding the WANTED poster bearing his photograph, name and information was reasonable. The poster was not introduced to prove that defendant created the poster, supported the poster or was involved in any way with Dr. Tiller's death. Dr. Flood was aware that in prior cases other doctors had been murdered. He was also aware that as a precursor to the murders, “WANTED posters” were distributed. While defendant testified about a division amongst anti-abortionists, claiming the group that created the Tiller poster was violent and his association was nonviolent, there is no evidence that Dr. Flood was, or should have been, aware of that division. The purpose of the Tiller poster was to show that WANTED posters in the past resulted in violence and therefore, it was relevant to prove the reasonableness of Dr. Flood's concern about the possibility of violence against him especially after posters displaying his photograph, name and information were distributed.
The introduction of the poster was probative to establish an element of the crime of stalking, that the poster “would cause a reasonable person to ... (1) [f]ear for the person's safety or the safety of the person's immediate family or close personal associates.” N.C. Gen.Stat. § 14–277.3A(c) (2011). In the instant case, Flood was a doctor who performed abortions. Given the history of these posters, a reasonable person in his position would also fear for their safety if posters were printed with their photograph, name and information. It was relevant for the jury to learn that the WANTED posters in the past resulted in violence.
Defendant claims, in his brief, that he was unassociated with Dr. Tiller's murder and had not participated in demonstrations at Dr. Tiller's clinic and therefore, introduction of the poster unfairly linked the two. However, evidence at trial indicated that defendant picketed Dr. Tiller's office in 1991 and 2001. Furthermore, defendant testified that he had not only been to Dr. Tiller's abortion “mill” but also went to Dr. Tiller's church to speak to him on many occasions. In addition, defendant testified that he also knew Dr. Tiller's wife.
Defendant also discusses Rule 404. Since the State did not try to introduce the Tiller poster at trial as defendant's creation or as a prior bad act, there is no reason Rule 404 applies in this situation. Therefore, defendant has failed to show how Rule 404 is applicable.
Defendant has also failed to show how he was prejudiced by the introduction of the poster as it was not directly linked to any of his own actions, but rather was introduced to show its effect on Dr. Flood. The WANTED poster was relevant and its probative value outweighed any prejudicial effect. The trial court did not err in admitting the poster.
IV. Constitutional Rights
Defendant alleges the trial court committed constitutional error in denying the motion to dismiss the charge of misdemeanor stalking, as the conduct in question was protected by the First Amendment and accordingly, the statute as applied to this defendant, was unconstitutional. We disagree. While we have ordered a new trial on other grounds, this issue is also likely to reoccur and therefore we address it on appeal.
De novo is the appropriate standard of review when the Court reviews alleged violations of constitutional rights. State v. Graham, 200 N.C.App. 204, 214, 683 S.E.2d 437, 444 (2009). “[W]hen considering the constitutionality of a statute or act there is a presumption in favor of constitutionality, and all doubts must be resolved in favor of the act.” State v. Whitaker, 201 N.C.App. 190, 192, 689 S.E.2d 395, 396 (2009) (citation omitted).
The First Amendment states that “Congress shall make no law ... abridging the freedom of speech.” Virginia v. Black, 538 U.S. 343, 358, 155 L.Ed.2d 535, 551 (2003). Freedom of speech is “secured to all persons by the Fourteenth [amendment] against abridgment by a state.” Schneider v. State, 308 U.S. 147, 160, 84 L.Ed. 155, 164 (1939). In addition to actual speech, the First Amendment also “affords protection to symbolic or expressive conduct.” Virginia, 538 U.S. at 358, 155 L.Ed.2d at 551. “There is no doubt that as a general matter peaceful picketing and leafletting are expressive activities involving ‘speech’ protected by the First Amendment.” United States v. Grace, 461 U.S. 171, 176, 75 L.Ed.2d 736, 743 (1983).
“[I]t is well established that ‘a bedrock principle underlying the First Amendment ... is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’ “ Kaplan v. Prolife Action League of Greensboro, 111 N.C.App. 1, 11, 431 S.E.2d 828, 832 (1993) (citation omitted), overruled on other grounds by Sharpe v. Worland, 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999). However, “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 93 L.Ed. 834, 843–44 (1949).
Furthermore, First Amendment protections are not absolute, as “the government may regulate certain categories of expression consistent with the Constitution.” Virginia, 538 U.S. at 358, 155 L.Ed.2d at 551. The First Amendment's prohibition of laws limiting the freedom of speech does not include “true threats.” Id. at 359, 155 L.Ed.2d at 552.
“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat.... Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.
Id. at 359–60, 155 L.Ed.2d at 552 (internal citations omitted). “[E]ven if the activities of the appellant ... could be viewed as religious in character, and therefore entitled to the protection of the Fourteenth Amendment, they would not cloak him with immunity from the legal consequences for concomitant acts committed in violation of a valid criminal statute.” Chaplinsky v. State, 315 U.S. 568, 571, 86 L.Ed. 1031, 1035 (1942).
The United States Court of Appeals for the Ninth Circuit dealt with similar type posters, and found that placing pictures of doctors who performed abortions on WANTED posters constituted a true threat. Planned Parenthood v. Amer. Coalition of Life, 290 F.3d 1058, 1063 (9th Cir.2002). The Court determined that the defendant was “aware that a ‘wanted'-type poster would likely be interpreted as a serious threat of death or bodily harm by a doctor in the reproductive health services community who was identified on one, given the previous pattern of ‘WANTED’ posters identifying a specific physician followed by that physician's murder.” Id. at 1063;see also U.S. v. Hart, 212 F.3d 1067, 1072 (8th Cir.2000) (where the Court held that when the defendant parked Ryder trucks in front of an abortion clinic the defendant intimidated the clinic because a Ryder truck had been used in the Oklahoma City bombing).
Prior to Virginia v. Black, Courts “consistently adopted an objective test” focusing “on whether a reasonable person would interpret the purported threat as a serious expression of an intent to cause a present or future harm.” Doe v. Pulaski County Special School Dist., 306 F.3d 616, 622 (8th Cir.2002); see also Planned Parenthood, 290 F.3d at 1074;United States v. Stewart, 420 F.3d 1007, 1016–17 (9th Cir.2005). However, since the decision in Virginia, some courts have interpreted the Virginia holding as more of a subjective test, since it defined “true threats” as “ ‘those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals .’ “ Id. at 1017 (quoting Virginia, 538 U.S. at 359–60, 155 L.Ed.2d at 552);see also U.S. v. Cassel, 408 F.3d 622, 632 (9th Cir.2005) (recognizing that “the element of intent [is] the determinative factor separating protected expression from unprotected criminal behavior”) (citation omitted); compare Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 616 (5th Cir.2004) (recognizing that “to lose the protection of the First Amendment ... the threat must be intentionally or knowingly communicated to either the object of the threat or a third person” and that “[t]he protected status of the threatening speech is not determined by whether the speaker had the subjective intent to carry out the threat”).
The Fourth Circuit interpreted Virginia language defining true threats, “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual ...,” as a general intent standard. U.S. v. White, 670 F.3d 498, 508–09 (4th Cir.2012). The Court stated that “the Court's use of the word ‘means' in ‘means to communicate’ [suggests] ‘ intends to communicate,’ so that the speaker must intend to communicate a threat....” Id. at 509. Furthermore, the Court found that when the Virginia Court defined a “true threat” there was no indication that “it was redefining a general intent crime ... to be a specific intent crime.” Id. The Court concluded that “while the speaker need only intend to communicate a statement, whether the statement amounts to a true threat is determined by the understanding of a reasonable recipient familiar with the context that the statement is a ‘serious expression of an intent to do harm’ to the recipient.” Id. (citation omitted).
In the instant case, defendant created and distributed a poster that included the caption, “WANTED ... by Christ, to Stop Killing Babies.” Dr. Flood's photograph, name and information were on the poster and it was distributed in his office building and around his neighborhood. Subsequently, Flood contacted law enforcement because he was “extremely concerned” as he “knew that these were the type of posters that went out just before other doctors were killed or murdered.” Defendant was charged with misdemeanor stalking. The State had the burden to prove that defendant “harasse[d] another person without legal purpose ... and the defendant kn[ew] or should [have known] that the harassment or the course of conduct would cause a reasonable person ... to fear for the person's safety....” N.C. Gen.Stat. § 14–277.3A(c) (2011). At the close of the State's evidence defendant raised this constitutional claim in a motion to dismiss, arguing that his conduct of leafletting should be protected by the First Amendment.
Although Courts have found that leafletting is protected by the First Amendment, the WANTED poster at issue in the instant case, is beyond an ordinary leaflet. Defendant testified that he is a nationally-known figure in the abortion debate and that he has an awareness of the history of these WANTED posters. In 1993, in response to these type posters, defendant wrote a document because “somebody had to stand up,” and to follow Christ you “have to deny that poster because it is a terrible poster ... and it will cause you to do wrong things” and because he wanted individuals to deny “the whole idea that it's all right to be violent.” Defendant further stated that he generally attempted to speak to doctors three times prior to using WANTED posters, that he had to be careful not to make the posters “threatening to anyone,” and that handing them out was the “last thing we wanted to do.” He also acknowledged that the WANTED posters had stopped being used and they are not used any more “except for here.”
Defendant's testimony showed that he knew about the history of the WANTED posters and was aware that they could be “threatening.” While defendant testified that he did not intend to make Dr. Flood fearful, his testimony showed that by handing out the posters, defendant intended to communicate with Dr. Flood and that communication caused Dr. Flood to fear for his own safety. Therefore, the WANTED posters distributed by defendant fall under the definition of a true threat, an unprotected category of speech. See U.S. v. White, 670 F.3d at 509;see also Virginia, 538 U .S. at 359–60, 155 L.Ed.2d at 552.
While defendant claimed he and his organization were peaceful, and thus would not actually commit an act of violence, there is no evidence that Dr. Flood knew the nature of defendant's message when he received the poster or that defendant attempted to communicate a peaceful message. Dr. Flood knew that defendant threatened him with a WANTED poster, returned several months later to distribute posters at Dr. Flood's office, as well as the area surrounding the office, and more importantly in Dr. Flood's neighborhood and home. Dr. Flood was also aware that other doctors had been murdered after the distribution of similar posters. Defendant wanted the posters to send Dr. Flood a message to stop performing abortions and used the posters in a manner to achieve that result. Since defendant knew that other doctors had been murdered after dissemination of the posters, then he knew, or should have known, that by communicating the message to Dr. Flood through a WANTED poster he would place Dr. Flood in fear. A “reasonable recipient” in Dr. Flood's position would understand that defendant's method of communicating his message to Dr. Flood by using the poster was a “serious expression of an intent to do harm.” U.S. v. White, 670 F.3d at 509. (citation omitted). Therefore, the use of the poster falls within the definition of “true threat.” Virginia, 538 U.S. at 359–60, 155 L.Ed.2d at 552 (“The speaker need not actually intend to carry out the threat.”). The statute is constitutional as applied to defendant. Defendant had no right to intimidate, threaten or incite violence against the victim.
Defendant cites several cases that discuss the application of the First Amendment to various types of speech. See United States v. Alvarez, 567 U.S. ––––, 183 L.Ed.2d 574, –––– (2012) (holding that the Stolen Valor Act of 2005 violated the First Amendment because falsity is not a general exception to the First Amendment and there was a “lack of a causal link between the Government's stated interest and the Act”); Connick v. Myers, 461 U.S. 138, 75 L.Ed.2d 708 (1983); Snyder v. Phelps, 562 U.S. ––––, 179 L.Ed.2d 172 (2011); Gaunt v. Pittaway, 139 N.C.App. 778, 534 S.E .2d 660 (2000). However, we hold that the WANTED poster defendant used to communicate his message to Dr. Flood could be categorized as a true threat. Since true threats are excluded from First Amendment protection, there is no need to address the merits of his argument. The trial court did not err in failing to dismiss defendant's charge on the basis that his activity was protected by the First Amendment.
V. Motion to Dismiss Stalking Charge
Defendant alleges the trial court erred in denying the motions to dismiss the charge, because the evidence was insufficient to submit to the jury on the issue of stalking. Specifically, defendant contends that the State failed to prove that defendant knew or should have known that his actions would place Dr. Flood in fear and that defendant's actions were without legal purpose. As this issue is likely to reoccur on retrial, we address this argument on appeal.
The standard of review for a trial court's denial of a motion to dismiss is de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S .E.2d 29, 33 (2007).
A defendant's motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant's being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence.
State v. Van Pelt, 206 N.C.App. 751, 753, 698 S.E.2d 504, 506 (2010) (citation omitted).
To prove stalking, the State has the burden to prove that defendant “willfully on more than one occasion harasses another person without legal purpose ... and the defendant knows or should know that the harassment ... would cause a reasonable person to ... (1)[f]ear for the person's safety or the safety of the person's immediate family or close personal associates.” N.C. Gen.Stat. § 14–277.3A(c) (2011). A “reasonable person” is “[a] reasonable person in the victim's circumstances.” N.C. Gen.Stat. § 14–277.3A(b)(3) (2011). A. Reasonable Fear
Defendant contends that Dr. Flood could not have been in reasonable fear because he had known about the posters for four months, OSA had been actively demonstrating in Charlotte for six years without violence, OSA and defendant signed pledges of nonviolence, defendant did not follow Dr. Flood, and there was no erratic behavior, no overt threats and no mention of having weapons. We disagree.
Harassment is “[k]nowing conduct, including written or printed communication or transmission ... directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.” N.C. Gen.Stat. § 14–277.3A(b)(2) (2011). Our Court has defined several of the terms used in the statutory definition of harassment, “including ‘torment,’ as ‘[t]o annoy, pester, or harass,’ and ‘terrorize,’ as ‘[t]o fill or overpower with terror; terrify.’ “ State v. Wooten, 206 N.C.App. 494, 498, 696 S.E.2d 570, 573–74 (2010), writ denied, disc. review denied,364 N.C. 606, 705 S.E.2d 340 (2010) (citation omitted). This Court has noted that “reasonable fear” should be defined by the court 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 victim's fears and apprehensions.” State v. Ferebee, 137 N.C.App. 710, 717, 529 S.E.2d 686, 690 (2000).
In the instant case, defendant's initial purpose was only a “threat” to distribute the poster if Dr. Flood did not stop performing abortions. When Dr. Flood continued performing abortions, defendant “weaponized” the posters, distributing and posting them both at Dr. Flood's office and in his neighborhood. While defendant is correct that Dr. Flood knew about the posters for four months, there is no evidence that they were distributed before February 2010. Defendant's activity escalated from a mere threat to actual activity and thus it was reasonable for Dr. Flood to fear violence once the posters actually were distributed.
Despite defendant's contentions, OSA's activities in the prior six years do not negate Dr. Flood's fear. While Dr. Flood had observed protestors outside the clinics, he had not previously seen a WANTED poster that displayed his photograph, name and information. Three other doctors were murdered after WANTED posters that included their information were distributed. The distribution of the posters was the catalyst for Dr. Flood's fear. Furthermore, there is no evidence that Dr. Flood was aware of defendant and OSA's pledges of nonviolence.
Defendant claims Dr. Flood's fear was unreasonable because defendant did not follow Dr. Flood. However, the statute does not require that defendant follow Dr. Flood, but rather that defendant willfully harassed or directed conduct over time at the victim. SeeN.C. Gen.Stat. § 14–277.3A(c) (2011). The State presented evidence at trial that defendant visited Dr. Flood's office on several occasions and his neighborhood on one occasion. The trial court determined that numerous visits over a period of several months constituted willful harassment or directed conduct over a period of time sufficient to submit the issue of stalking to the jury.
Defendant implies that the stalking statute requires erratic behavior, Van Pelt, 206 N.C.App. at 752–53, 698 S.E.2d at 505–06, overt threats, State v. Thompson, 157 N.C.App. 638, 643, 580 S.E.2d 9, 12–13 (2003), or weapon possession, Wooten, 206 N.C.App. at 499, 696 S.E.2d at 574. However, defendant is mistaken. The stalking statute does not require erratic behavior. Rather, defendant must harass an individual knowing that a reasonable person would be placed in fear or suffer substantial emotional distress. N.C. Gen.Stat. § 14–277.3A(c) (2011). Harassment is conduct “directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.” N.C. Gen.Stat. § 14–277.3A(b)(2) (2011).
Dr. Flood testified that he “knew that these were the types of posters that went out just before other doctors were killed or murdered” and therefore he was extremely concerned when they were distributed. Furthermore, the changes in his behavior as a result of the posters, proves that he was filled with terror: he varied his work route, he did not use his designated parking spot at his office, he had his car windows tinted and stopped wearing his white coat while driving, so as to not identify himself as a doctor. In addition, he stopped watching television in the family room at night because of the large windows in his house since a doctor in New York was killed in his home by someone who used a high powered rifle from a distance. The State presented sufficient evidence that defendant's action fell within the statutory definition of “harassment.” See Wooten, 206 N.C.App. at 498, 696 S.E.2d at 573 (torment means annoying, pestering or harassing the victim and terrorizing has been defined as filling or overpowering the victim with terror).
Defendant contends the State “failed to prove beyond a reasonable doubt that [defendant] knew or should have known his actions would cause reasonable fear in Dr. Flood.” For a motion to dismiss, the standard of review is not “proof beyond a reasonable doubt” but rather whether there was substantial evidence of “each essential element” in the light most favorable to the State. See Van Pelt, 206 N.C.App. at 753, 698 S.E.2d at 506. Furthermore, defendant testified that he was aware that Dr. Tiller had been murdered, that he considered the WANTED posters as a measure of last resort after three warning visits, and that the posters are no longer used anywhere else “except for here.” Defendant knew or should have known that printing similar “WANTED posters” with Dr. Flood's photograph, name and information would evoke fear. B. Legal Purpose
Defendant contends that he had a legal purpose for contacting Dr. Flood because his actions were religiously based and therefore protected by the First Amendment. However, as discussed above, distribution of the posters constituted a true threat and was therefore not protected by the First Amendment. While defendant is correct that OSA obtained police permits prior to their protesting activity at the clinics, defendant produced no evidence that printing and distributing posters with an individual's photograph, name and information was within the purview of the permit.
The State provided sufficient evidence of each element of the stalking statute and therefore the trial court did not err in denying defendant's motion to dismiss.
VI. Conclusion
The trial court erred by instructing the jury on a theory not included in the warrant, therefore defendant is entitled to a new trial. However, the trial court did not err in admitting the Tiller poster, nor in denying defendant's motions to dismiss.
New trial in part, no error in part. Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).