State v. Bowen, ___ N.C. App. ___, 2022 NCCOA 213 (Apr. 5, 2022)

temp. stay granted, ___ N.C. ___, 871 S.E.2d 102 (Apr. 22, 2022)

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.