Appeal by defendant from judgment entered 29 September 1999 by
Judge W. Allen Cobb, Jr., in New Hanover County Superior Court.
Heard in the Court of Appeals 22 January 2001.
Attorney General Michael F. Easley, by Assistant Attorney
General Ted R. Williams, for the State.
Sofie W. Hosford for defendant-appellant.
Seth H. Jaffe and Deborah K. Ross for the American Civil
Liberties Union of North Carolina Legal Foundation, Inc.,
amicus curiae.
HUDSON, Judge.
Defendant appeals his conviction of the crime of communicating
threats. He primarily contends the trial court erred in denying
his motion to dismiss the charge for insufficiency of evidence. We
agree.
Facts surrounding the case are as follows: on 20 April 1999,
two students at Columbine High School near Littleton, Colorado,
went on a shooting and bombing rampage, killing twelve fellow
students, a teacher, and finally themselves. After this tragedy,school officials, students, and parents across the nation were
afraid that copycat crimes would occur in their own schools.
Hoggard High School in New Hanover County, North Carolina, was no
exception.
Shortly after the killings at Columbine, rumors began to
circulate throughout the student body that Hoggard High School was
to be bombed on 4 May 1999. Principal Wright Anderson asked
parents to come to school and patrol the halls on that day to help
students feel safe. Still, on May 4th, over 500 students were
absent from the 2500-person school, which had a normal absentee
rate of about 120.
On the morning of May 4th, a student in Mr. Ostrowski's
keyboarding class discovered a screen saver on one computer which
stated, "The end is near." Mr. Ostrowski contacted the police
officer assigned to work with Hoggard High School. Police
investigators discovered the screen saver had been created by
student Joshua Mortimer, the defendant. Detective Leon Kerr
testified at trial that defendant admitted having written the
message and that defendant said he "didn't mean anything by it. He
put it on there for the meaning of the end of the school year or
the end of time, or whatever." Detective Kerr testified he knew
the screen saver was a prank; however, he subsequently charged
defendant with the crime of communicating a threat.
At the close of the State's evidence at trial, and again at
the close of all the evidence, defendant made motions to dismiss
the charge, which motions were denied. The jury found defendant
guilty as charged. Defendant appealed his conviction to this Court29 September 1999.
In ruling on a motion to dismiss, the trial court must decide
whether there is substantial evidence as to each essential element
of the offense charged, and that the defendant was the person who
committed the offense. See State v. Powell, 299 N.C. 95, 261
S.E.2d 114 (1980). Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion. See State v. Smith, 300 N.C. 71, 265 S.E.2d 164
(1980). Moreover, the evidence is to be viewed in the light most
favorable to the State. See State v. Bright, 301 N.C. 243, 271
S.E.2d 368 (1980).
The crime of communicating threats was set forth at N.C.G.S.
§ 14-277.1 during the relevant time period as follows (it has
since been amended):
(a) A person is guilty of a Class 1 misdemeanor if
without lawful authority:
(1) He willfully threatens to physically injure the
person or damage the property of another;
(2) The threat is communicated to the other person,
orally, in writing, or by any other means;
(3) The threat is made in a manner and under
circumstances which would cause a reasonable person to
believe that the threat is likely to be carried out; and
(4) The person threatened believes that the threat
will be carried out.
Defendant contends the State failed to produce sufficient
evidence of any of the above four elements to enable a jury to
convict him. First, defendant argues the statement "the end is
near" does not constitute a threat to injure a person or damage
property. We agree.
The meaning of the statement "the end is near" is impossibleto ascertain. The end of what is near
? Who will bring about the
"end" and how? Numerous state witnesses testified at defendant's
trial that they did not know what the statement meant. Given the
context in which the statement was written--Hoggard High School was
in a state of fear over the tragedy at Columbine and local rumors
of bomb threats--one possible interpretation of "the end is near"
is that the writer intended to bomb the school. However, the leap
to such a conclusion beyond a reasonable doubt is extremely
speculative and, we think, not a reasonable inference.
Given the context, the students and teacher who read the
screen saver were justifiedly afraid about what it could mean.
However, of the principal, teacher, school police officer, and four
students who testified they read the screen saver, only one person
could articulate what he or she thought the statement actually
threatened. Student Adam Horne testified, "I thought it was about
the bomb." Even Horne's explanation begs the question of what the
message meant. Horne did not say he thought the writer intended to
bomb the school. Rather, his testimony could as easily have meant
he thought the screen saver author was a student expressing his
fear that some other person was going to bomb the school.
Moreover, it is significant that defendant was never connected
with any of the alleged bomb threats at the school. There was no
evidence defendant had any plans to physically injure anyone or
damage school property. He had exhibited good behavior at the
school prior to this incident. The arresting officer testified he
determined the message written on the computer was "a prank." In contrast to the present situation, past
reported decisions
upholding the crime of communicating threats have involved threats
clearly stating what the speaker intended to do. For example, in
State v. Roberson, 37 N.C. App. 714, 715, 247 S.E.2d 8, 9 (1978),
the defendant picked up a rock and told her neighbor, "If you come
any closer, I will hit you with it." In State v. Evans, 40 N.C.
App. 730, 731, 253 S.E.2d 590, 591, appeal dismissed, 297 N.C. 456,
256 S.E.2d 809 (1979), the defendant pointed a gun at someone and
said, "I'm going to kill you." See also State v. Cunningham, 344
N.C. 341, 360, 474 S.E.2d 772, 781 (1996)("Hit me with that
flashlight and I'll cut you a flip."); State v. Elledge, 80 N.C.
App. 714, 715, 343 S.E.2d 549, 550 (1986)("I had better get that
man out of my bed or he was going to come down and blow my brains
out."); State v. Dixon, 77 N.C. App. 27, 29, 334 S.E.2d 433, 435
(1985)("Don't move. I'll blow your fucking brains out."); State v.
Zigler, 42 N.C. App. 148, 151, 256 S.E.2d 479, 481 (1979)("There
are two of you dudes that need killing . . . Someone is going to
have to do you in, and I decided that it was going to be me . . .
.").
In Roberson, this Court found significant that "the terms of
the threat . . . indicate[d] an intention to carry out the threat."
37 N.C. App. at 716, 247 S.E.2d at 10. Such an indication is
absent from the present case. The statement "the end is near" does
not indicate what, if anything, the speaker intends to do.
In conclusion, we agree with defendant that the State failedto present substantial evidence of the first element of
the crime
of communicating threats--that defendant willfully threatened to
physically injure the person or damage the property of another.
Without proving this element, the State could not meet its burden,
and the trial court should have granted defendant's motion to
dismiss the charge.
Since we are able to resolve this case by examining only the
first element of the crime of communicating threats, we decline to
address defendant's argument that the State did not produce
sufficient evidence of any of the remaining elements. Furthermore,
we need not address defendant's additional assignments of error,
including whether certain evidence was improperly admitted under
N.C.R. Evid. 404(b) and whether defendant's constitutional right to
free speech was violated.
Reversed and vacated.
Chief Judge EAGLES and Judge SMITH concur.
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