Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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For about two years, Counterman, the petitioner in this case, sent hundreds of Facebook messages to a local artist. The two had never met, and the woman never responded. A number of the messages expressed anger at the artist and envisaged harm upon her. The messages put the artist in fear and upended her daily life. Counterman was charged under a Colorado stalking statute making it unlawful to “[r]epeatedly . . . make[] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Slip Op. at 2.
Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and thus could not form the basis of a criminal prosecution. In line with Colorado law, the State had to show that a reasonable person would have viewed the Facebook messages as threatening but did not have to prove that Counterman had any subjective intent to threaten. The trial court decided that Counterman’s statements rose to the level of a true threat, and the Colorado Court of Appeals Affirmed. The United States Supreme Court granted certiorari to consider (1) whether the First Amendment requires proof of a defendant’s subjective mindset in true threats cases and (2) if so, what mens rea is sufficient.
In an opinion by Justice Kagan, the Supreme Court concluded that in order to prevent a chilling effect on speech, the State must show a culpable mental state. The Court reasoned that although this requirement make prosecution of some otherwise prohibited speech more difficult, it reduces the prospect of chilling fully protected expression.
The Court further concluded that recklessness was the most appropriate mens rea in the true threats context. A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that the conduct will cause harm to another. In the threats context, it means that the speaker is aware that others could regard his statements as threatening violence and delivers them anyway. Slip Op. at 11. The Court concluded that the recklessness standard “offers enough breathing space for protected speech without sacrificing too many of the benefits of enforcing laws against true threats.” Slip Op. at 14.
The State had to show only that a reasonable person would have understood Counterman’s statements as threats but did not have to show any awareness on his part that the statements could be understood that way. The Court held that this was a violation of the First Amendment, vacated the judgment, and remanded the case for further proceedings.
Justice Sotomayor, joined partly by Justice Gorsuch, concurred in the conclusion that some subjective mens rea is required in true-threats cases and that in this particular case, a mens rea of recklessness is sufficient, but noting that she would not reach the distinct conclusion that a mens rea of recklessness is sufficient for true threats prosecutions generally and that requiring nothing more than a mens rea of recklessness is inconsistent with precedent and history.
Justice Barrett dissented in an opinion joined by Justice Thomas. The dissent reasoned that the requirement of a subjective element unjustifiably grants true threats preferential treatment as compared to other contexts involving unprotected speech, and the result may sweep much further than the opinion lets on.
The facts of this case were previously summarized following the Court of Appeals decision in State v. Taylor, 270 N.C. App. 514 (2020), available here. Briefly, the defendant in this case wrote several social media posts allegedly threatening an elected district attorney over her decision not to seek criminal charges in connection with the death of a child. The defendant was convicted of threatening a court officer under G.S. 14-16.7(a), and appealed. The Court of Appeals held that the defendant’s convictions were in violation of the First Amendment and vacated the conviction. The state sought and obtained discretionary review at the state Supreme Court. The higher court concluded that the defendant’s conviction was properly vacated, but remanded the case for a new trial rather than entry of a judgment of acquittal.
The Supreme Court began its analysis by reviewing the events that prompted the defendant’s Facebook posts, the contents of those posts, and the state’s evidence purportedly supporting the charges, such as evidence that the prosecutor was placed in fear by the threats. Next, the higher court summarized the opinion of the Court of Appeals, which held that the offense required proof of both general and specific intent on the part of the defendant. The appellate court held that the defendant could only be constitutionally convicted under this statute if he made a “true threat,” meaning that the defendant not only made a statement that was objectively threatening (i.e., one which would be understood by those who heard or read it as a serious expression of intent to do harm), but also that he made that statement with the subjective intent that it be understood as a threat by the recipient. Finding that the state failed to make a sufficient showing of those requirements, the Court of Appeals held the statements were protected speech under the First Amendment and vacated the conviction.
Undertaking its own review, the state Supreme Court noted that the First Amendment broadly protects the fundamental right of free speech, and only certain limited categories of speech involving obscenity, defamation, incitement, fighting words, and “true threats” can be constitutionally restricted. The court reviewed Watts v. United States, 394 U.S. 705 (1969), which distinguished true threats from other types of protected speech. The court identified three factors from Watts that were relevant to evaluating the case at hand, although no single factor is dispositive: (i) the statute at issue must be interpreted with the First Amendment in mind; (ii) the public’s right to free speech is even more substantial than the state’s interest in protecting public officials; and (iii) the court must consider the context, nature and language of the statement, and the reaction of the listener. Next, the court reviewed the fractured opinions from another true threats case, Virginia v. Black, 538 U.S. 343 (2003). After considering the contrasting interpretations offered by the state and the defendant in the present case as to how Black’s holdings should be construed, the court ultimately concluded that “a speaker’s subjective intent to threaten is the pivotal feature separating constitutionally protected speech from constitutionally proscribable true threats.” Based on the precedent above and reiterating the importance of the free speech interest at stake, the court held that a true threat is defined as “an objectively threatening statement communicated by a party which possesses the subjective intent to threaten a listener or identifiable group,” and “the State is required to prove both an objective and a subjective element in order to convict defendant under N.C.G.S. § 14-16.7(a).”
Applying that definition and framework, the state Supreme Court then considered whether the trial court erred by denying the defendant’s motion to dismiss. On a motion to dismiss, the question for the trial court is whether there is substantial evidence, when viewed in the light most favorable to the state, to support each element of the offense and find that the defendant was the perpetrator. In this case there was no dispute that the defendant wrote the posts at issue, and they contained ostensibly threatening language that was not clearly “political hyperbole” or other protected speech. The state Supreme Court acknowledged that cases raising First Amendment issues are subject to an independent “whole record review,” but explained that this supplements rather than supplants traditional appellate review, and it is not inconsistent with the traditional manner of review on a motion to dismiss. Under this standard of review, the trial court did not err by ruling that the state had presented sufficient evidence to withstand a motion to dismiss and submit the case to the jury.
However, because the trial court did not properly instruct the jury on the charged offense consistent with the subjective intent requirement under the First Amendment, the conviction was vacated and the case was remanded to the trial court for a new trial and submission of the case to a properly instructed jury.
Justice Earls concurred with the majority’s conclusion that the First Amendment requires the state to prove both the objective and subjective aspects of the threat, but dissented on the issue of whether the state’s evidence was sufficient to withstand a motion to dismiss in this case, and disagreed with the majority’s interpretation and application of whole record review. In Justice Earls’ view, the defendant’s Facebook posts could not have been viewed as a serious intent to inflict harm when considered in context by a reasonable observer, and even if they could, the state offered insufficient evidence to show that this was the defendant’s subjective intent.
In this Surry County juvenile case, a petition was filed alleging that the juvenile committed extortion by obtaining a digital image of a victim, without her knowledge or consent, in which she was in only her bra and underwear. The petition also alleged that the juvenile used the image to obtain food from the school cafeteria while threatening to expose the image if the victim refused to buy the food or do what the juvenile asked of her. The petition did not name the victim. The juvenile was adjudicated delinquent and the court entered a Level 1 disposition. On appeal the juvenile asserted that (1) the court lacked subject matter jurisdiction because the petition was fatally defective in that it failed to name the victim, (2) the juvenile’s motion to dismiss should have been granted because the crime of extortion requires threat of unlawful physical violence and the juvenile did not make such a threat, (3) there was a fatal variance between the threat alleged in the petition and the proof at the adjudication hearing, (4) the written findings in the adjudication order were insufficient, and (5) the disposition order was insufficient in its failure to contain findings of fact to demonstrate that the court considered all the required factors in G.S. 7B-2501(c).
(1) The Court of Appeals concluded that there was no fatal defect in the petition. Juvenile petitions are generally held to the same standards as criminal indictments in that they must aver every element of the offense with sufficient specificity to clearly apprises the juvenile of the conduct being charged. Like an indictment, a fatally deficient petition fails to evoke the jurisdiction of the court. Central to the offense of extortion is the wrongfulness of the method by which the juvenile seeks to obtain something of value. Slip op. at ¶ 23. A charging instrument charging extortion need only aver the material elements of the offense, which are 1) that a wrongful demand was made with 2) the intent to demand something of value. Slip op. at ¶ 24. The petition in this case sufficiently alleged each of these elements. It was not necessary to specifically name the victim.
(2) The Court also assumed, without holding, that G.S. 14-118.4 is an anti-threat statute, the court holds that First Amendment jurisprudence does not limit the application of this statute to threats of unlawful physical violence. Slip op. at ¶ 31. The definition of a true threat, as provided in State v. Taylor, 379 N.C. 589, 2021-NCSC-164, does not require that a threat includes unlawful physical violence. There is no constitutional rule that threats are protected speech unless they threaten unlawful physical violence. Slip op. at ¶ 34. The State was not required to prove that the juvenile threatened unlawful physical violence.
(3) Next, the Court concluded that there was no fatal variance between the petition and the evidence. The essential element of extortion is that the juvenile used a wrongful threat to obtain something of value. The precise identification of what that thing of value was is not material, as long as the State proves that the juvenile obtained or attempted to obtain something of value. Slip op. at ¶ 40. The specific language in the petition alleging that the juvenile sought to obtain food from the cafeteria was unnecessarily specific and therefore surplusage. The fact that the evidence showed that the juvenile asked the victim to do his homework and the petition alleged that he asked her to obtain food from the cafeteria did not create a fatal variance.
(4) Next, the Court concluded that there were insufficient written findings in the adjudication order. G.S. 7B-2411 requires that, at a minimum, the court state in a written adjudication order that the allegations in the petition have been proved beyond a reasonable doubt. Language on the pre-printed form used, stating that “The following facts have been proven beyond a reasonable doubt: . . ,” followed by a finding that states, “[a]t the hearing before the judge, the juvenile was found to be responsible for extortion in violation of 14-118.4,” is insufficient to satisfy this statutory requirement. Only a conclusory statement that the juvenile was responsible for the offense is insufficient. The trial court must affirmatively state the burden of proof in its written findings without regard to the pre-printed language on the form. The case is remanded for the court to make the necessary written findings in the adjudication order. The dispositional order also incorporated the predisposition report and the juvenile’s risk and needs assessment by reference. There were no written findings related to the factors the court is required to consider under G.S. 7B-2501(c) when ordering a disposition. The order is therefore insufficient. Because the adjudication order is vacated, this disposition order is also vacated. However, the insufficiency of the disposition order provides an independent ground for vacating the disposition order. On remand, the trial court may hold a new dispositional hearing to hear additional evidence needed to appropriately consider the factors required by G.S. 7B-2501(c).
The defendant and victim met on a website arranging “sugar daddy” and “sugar baby” relationships, and the two engaged in a brief, paid, sexual relationship. The victim was a married man with children at the time. Years later, the defendant contacted the man, stating that she planned to write a book about her experiences on the website and that she intended to include information about their relationship within. The woman repeatedly contacted the man and threatened to include information that the man had shared with her about his ex-wife and their marriage. She also threatened to contact the man’s ex-wife, as well as his current wife. Eventually, she offered the man a confidentiality agreement, whereby she would keep the details of their relationship private in exchange for a large sum of money. The man went to the police, and the woman was charged with extortion. She was convicted at trial and appealed.
(1) Although the defendant did not raise a constitutional challenge in her motions to dismiss at trial, her motion to dismiss for insufficient evidence preserved all sufficiency issues for review, including her constitutional argument. According to the court:
Defendant was not required to state a specific ground for her motion to dismiss as a properly made motion to dismiss preserves all arguments based on insufficiency of the evidence. Moreover, Defendant does not raise an entirely new issue on appeal, but rather argues the insufficiency of the evidence to support a conviction for extortion under her proposed Constitutional interpretation of N.C. Gen. Stat. § 14-118.4. Bowen Slip op. at 7 (citation omitted).
(2) Under the First Amendment to the U.S. Constitution, threat crimes must be interpreted to require a “true” threat. “A ‘true threat’ is an ‘objectively threatening statement communicated by a party which possess the subjective intent to threaten a listener or identifiable group.’” Bowen Slip op. at 10 (citing State v. Taylor, 379 N.C. 589 (2021)). The defendant argued that extortion under G.S. 14-118.4 must be interpreted to require proof of a true threat. The court disagreed. It found that extortion falls within another category of unprotected speech—speech integral to criminal conduct, or speech that is itself criminal (such as solicitation to commit a crime). This approach to extortion is consistent with treatment of the offense by federal courts. Although an extortion statute may sweep too broadly in violation of the First Amendment, North Carolina’s extortion statute requires that the defendant possess the intent to wrongfully obtain a benefit via the defendant’s threatened course of action. The statute therefore only applies to “extortionate” conduct and does not reach other types of protected speech, such as hyperbole or political and social commentary. According to the unanimous court:
Following the U.S. Supreme Court and federal appellate opinions, we hold extortionate speech is criminal conduct in and of itself and, as such, is not constitutionally protected speech. Therefore, the First Amendment does not require that the ‘true threat’ analysis be applied to N.C. Gen. Stat. § 14-118.4. Bowen Slip op. at 16.
Here, the evidence clearly established the defendant’s wrongful intent and threats, and she was properly convicted of extortion.
In this Iredell County case, the juvenile, “Sophie,” was adjudicated delinquent for communicating a threat of mass violence on educational property in violation of G.S. 14-277.6 after making a statement, in the presence of four classmates, that she was going to blow up the school. She was also adjudicated delinquent for communicating a threat to harm a fellow student in violation of G.S. 14-277.1 after stating that she was going to kill him with a crowbar and bury him in a shallow grave. Sophie argued that the State failed to present sufficient evidence to support the allegations of the charged offenses.
(1) Proof of a “true threat” is required for an anti-threat statute. The true threat analysis involves both how a reasonable hearer would objectively construe the statement and how the perpetrator subjectively intended the statement to be construed. While there is a split in cases regarding what the State must prove regarding the perpetrator’s subjective intent, this case is resolved because the State did not meet its burden of showing that a reasonable hearer would have construed Sophie’s statement as a true threat. The three classmates who heard the threat and testified at the adjudication hearing did not think she was serious when she made the threat. Sophie had made outlandish threats before and never carried them out. Most of the classmates believed that Sophie was joking when she made the statement. There is not enough evidence to support an inference that it would be objectively reasonable for the hearers to think Sophie was serious in this threat. The adjudication is reversed with respect to the offense of communicating a threat of mass violence on educational property.
(2) The evidence provided regarding the threat to the classmate was sufficient. That evidence, when analyzed in the light most favorable to the State, established that the statement was made so that the classmate could hear it, the classmate took the threat seriously, and it would be reasonable for a person in the classmate’s position to take the threat seriously because the classmate was smaller than Sophie and had previously been physically threatened by her. The Court of Appeals affirmed the adjudication of communicating a threat to harm a fellow student and remanded the case to allow the trial court to reconsider the disposition in light of the reversal of the adjudication of communicating a threat of mass violence on educational property.
The victim in this case was the elected district attorney for the county, and the defendant was an acquaintance who worked in an office building next to the courthouse. After learning that the district attorney would not be pursuing criminal charges in a matter involving the death of a child, the defendant made a series of posts on Facebook. Some of the posts broadly addressed the defendant’s general anger and frustration with politics and the judicial system as a whole, while other posts more specifically referenced the district attorney in particular, using phrases such as “death to her as well” or calling for “old time mtn [mountain] justice,” and implied his willingness to use firearms against law enforcement if they came to his house in response to the posts. The defendant deleted the posts later the same evening, but a detective who was a Facebook friend of the defendant took screenshots of the posts before they were removed. After bringing in the SBI to investigate and interviewing the defendant about the posts, the defendant was charged with threatening a court officer under G.S. 14-16.7(a). Following a jury trial, the defendant was convicted and appealed.
At trial, the defendant raised a First Amendment challenge, arguing that anti-threat statutes such as G.S. 14-16.7 must be construed as constitutionally requiring proof of a “true threat,” meaning that the communication shows a serious intent to cause harm to the victim, and further arguing that the trial court should not admit the five posts offered by the state while excluding other posts and comments that would have provided relevant context and explanation. On appeal, the defense argued that the trial court erred by: (i) denying the defendant’s motion to dismiss at the close of evidence based on the state’s failure to prove the alleged threats were true threats; and (ii) failing to properly instruct the jury on the law and requirements of a true threat.
Ruling as a matter of first impression, the Court of Appeals found in favor of the defendant and reversed the conviction. The appellate court’s decision contains an exhaustive review of case law from North Carolina and other jurisdictions on the First Amendment’s application to anti-threat statutes and other forms of protected speech, but it relies most extensively on Watts v. United States, 394 U.S. 705 (1969), Virginia v. Black, 538 U.S. 343 (2003), and their progeny. Based on those cases, the appellate court agreed that laws which criminalize speech must be construed in accordance with the First Amendment; here, that means a threat cognizable under the statute must be a “true threat” as defined by Black: “under the First Amendment the State can punish threatening expression, but only if 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.’” To clarify its holding and provide guidance in future cases, the court made six supplemental holdings that were not yet fully addressed by the North Carolina case law.
First, when reviewing a conviction under an anti-threat statute, the appellate court will engage in a “whole record” review. Whenever a defendant’s conviction is based in part on a determination that the state met its burden of proving a true threat, the appellate court will conduct an independent review of the entire record to determine the sufficiency of the evidence and whether the defendant’s First Amendment rights were preserved.
Second, establishing that an alleged threat was a “true threat” must be treated as an essential element of the offense to be proved by the state. At trial in this case, the state relied heavily on the fact that the underlying statute and pattern jury instructions only used the single word “threat,” without further qualification. The appellate court’s holding on this point acknowledged that fact, but explained that in order to comport with the First Amendment, “‘true threat’ must be incorporated into the definition of N.C.G.S. § 14-16.7(a) if the statute is to be held constitutional” (emphasis in original).
Third, the “intent” to communicate a true threat is also deemed an essential element of the offense. A statement is only a true threat if it was made intentionally, meaning that it was made with both the general intent to make the threatening statement (considered “from the viewpoint of an objective, reasonable person considering the alleged threat in full context”) and specific intent (i.e., a subjective intent to truly threaten). This does not require proof that the defendant actually intended to carry out the threatened act, but he must have intended that it would be received as a true threat by him to do so.
Fourth, deciding on appeal whether a statement was a true threat is a mixed question of fact and law. Therefore, proving a true threat will usually be a matter for the jury (or judge acting as trier of fact) to decide initially, but as noted above the appellate courts will conduct a “de novo whole record review” on appeal, even if the jury was properly instructed on the law and there is some evidence in the record to support its finding.
Fifth, noting that many types of protected speech may be unpopular, crude, or even aggressive, a “true threat” is defined in accordance with Black as only those statements where “the speaker intends to communicate, to a particular individual or group of individuals, a threat, being ‘a serious expression of an intent to commit an act of unlawful violence[.]’” This definition incorporates the intent requirements adopted above, meaning that the defendant had the “subjective intent to threaten a person or group of persons by communicating the alleged threat.” But deciding whether a statement was a true threat must also be evaluated objectively, based on the “context in which the communication was made; i.e., all the facts surrounding the communication of the challenged speech.” In other words, finding a statement to be a true threat requires both a subjective and an objective determination: (i) the defendant subjectively intended the statement to be understood as a true threat; and (ii) the people hearing or reading it would objectively understand it, in context, as a serious expression of intent to kill or injure the person or group identified.
Sixth, applying the preceding analyses to the particular statute at issue, the court identified and summarized the seven essential elements of the offense as follows:
In order to obtain a constitutional conviction for threatening a court officer pursuant to N.C.G.S. § 14-16.7(a), the State must prove, beyond a reasonable doubt, that: (1) the defendant; (2) knowingly and willfully; (3) made a threat; (4) constituting a “true threat,” meaning a statement “that an ordinary, reasonable [person] who is familiar with the context in which the statement [wa]s made would interpret as a serious expression of an intent to do harm”; (5) to a court official; (6) knowing the court official was a court official; and (7) when the defendant communicated the statement, the defendant specifically intended the statement to be understood by the court officer as a real threat expressing the defendant’s intention to carry out the actions threatened.
Additionally, since proving a true threat is an essential element of the offense, failure to properly instruct the jury on these issues violates the defendant’s First, Sixth, and Fourteenth Amendment rights. That error is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.
Finally, turning back to the case at hand, the court conducted an independent whole case review to decide whether the statements made by this defendant were true threats, whether the defendant had the subjective intent that they reach the recipient and cause her to believe that he intended to kill her, and whether they would be understood as threats by an objectively reasonable person.
Looking first at the plain language of the posts, although some of them did contain aggressive statements such as “death to her as well” and “she will be first to go,” the court concluded that they were also vague or contingent on the occurrence of unlikely events (such as a revolution), and “there were no specifics such as time, manner, place, ability, preparation, or other facts that might allow a reasonable person to read Defendant’s words as a ‘true threat’ to kill D.A. Welch.” As a result, none of the posts offered by the state rose to the level of constituting a true threat.
The court then evaluated the statements in context, considering other factors such as the defendant’s reference (and apparent access) to firearms, his close proximity and ability to reach the purported victim, and the initial concern of the detective who saw the posts indicating that she viewed the threat as real. However, other evidence indicated that neither the victim nor law enforcement perceived the statements as true threats, such as the detective’s somewhat delayed response to the posts, the purported victim’s belief that additional security was unnecessary, the fact that officers did not further investigate the defendant’s ability to carry out the alleged threats, a history of “polite and non-threatening” interactions between the parties, and the broad nature of other comments directed at the judicial system as a whole.
As part of its whole case review, the appellate court also considered the hyperbolic nature of many posts on “public forums” like Facebook, the political context of the defendant’s related comments about the judicial system, the lack of specificity to any alleged threats, the reactions of others who saw the posts, and the defendant’s explanation for the posts. In sum, the court found that as a matter of law the defendant’s posts did not rise to the level of being a “true threat” in this case, and the evidence did not support a finding that the defendant’s intent in posting the comments was to make the purported victim believe he actually intended to kill her. Consistent with the holdings above, the appellate court found that the trial court erred by failing to instruct the jury on the constitutionally required elements of a “true threat” and state’s burden to prove the defendant’s intent, and further found that the error was not harmless beyond a reasonable doubt in this case, given the erroneous law and arguments presented to the jury.
Based on its whole record review (or, in the alternative, based on the regular standard of appellate review as well as the trial court’s failure to properly instruct the jury), the defendant’s conviction was reversed and the case was remanded for entry of judgment of acquittal. The court then reiterated and summarized the essential elements of the offense, the state’s burden of proof, and the jury instructions required for a constitutionally valid conviction under the statute.