State v. Roberson

247 S.E.2d 8 (1978)

37 N.C. App. 714

STATE of North Carolina v. Dorothy ROBERSON.

No. 7814SC313.

Court of Appeals of North Carolina.

August 29, 1978.

*9 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William B. Ray and Deputy Atty. Gen. William W. Melvin, Raleigh, for the State.

James B. Maxwell, Durham, for defendant-appellant.

PARKER, Judge.

Defendant first assigns error to the court's denial of her motions for nonsuit. Relying on State v. Hall, 251 N.C. 211, 110 S.E.2d 868 (1959), defendant first contends that a person may not be punished for an offense he may commit in the future. The conduct proscribed by G.S. 14-277.1, however, is the making and communicating of the threat in the manner described in the statute, with no requirement that the threat be carried out. Here, there was ample evidence from which the jury could find that the threat was made and communicated by defendant "in a manner and under circumstances which would cause a reasonable person to believe that the threat [was] likely to be carried out" and that "[t]he person threatened believe[d] that the threat [would] be carried out." This was all that was required to show a violation of G.S. 14-277.1.

We do not accept defendant's contention that no violation of the statute occurred because her threat to Mrs. Ives, though completed, was a conditional threat made under circumstances such that it did not actually amount to a threat.

First, the evidence shows that the threat was a genuine threat and was perceived as such. Threatening language can amount to an offer to injure a person even though it is a conditional offer. The condition, "[i]f you come any closer," can have a reasonable likelihood of occurring and does not negate an intention to carry out the threat. Such a condition is distinguishable from the condition imposed in the statement, "`Were you not an old man, I would knock you down.'" The condition imposed in this latter statement is so restrictive as to indicate that there may actually have been no present intention to knock the old man *10 down. State v. Crow, 23 N.C. 375 (1841). Not only do the terms of the threat shown by the evidence in the present case indicate an intention to carry out the threat, but also the surrounding circumstances show that Mrs. Ives reasonably perceived the threat as genuine. Defendant and Mrs. Ives had previously been involved in similar disputes involving the rose bushes. One dispute occurred a year prior to the present incident, and another occurred just two days earlier. In each instance, Mrs. Ives found it necessary to refrain from cutting the bushes. In the incident which led to this action, defendant's threat was preceded by "one of her tantrums," and her actions caused Mrs. Ives and George Harris to stop cutting the bushes and to withdraw onto Mrs. Ives's porch. When the officer arrived, defendant told him that she would use the rock "if she had to."

Secondly, defendant's threat to hit Mrs. Ives with a rock did not become lawful merely because defendant indicated she had no intention to strike if Mrs. Ives did not "come any closer." Admittedly, the threat gave Mrs. Ives the power to avoid the threatened consequences by simply complying with the condition imposed by defendant. The condition, however, was one which defendant had no right to impose. The terms of the threat coupled with other evidence show that defendant, who came onto Mrs. Ives's land to accomplish her purpose, was threatening to hit Mrs. Ives unless she stopped cutting the overhanging rose bushes. Mrs. Ives had the legal right to be on her own land and to trim defendant's rose bushes to the extent they were hanging over Mrs. Ives's land. Annot., 18 A.L.R. 655 (1922), supplemented in Annot., 76 A.L.R. 1111 (1932) and Annot., 128 A.L.R. 1221 (1940). Applying principles long established in cases involving assault, see State v. Douglas, 268 N.C. 267, 150 S.E.2d 412 (1966); State v. Horne, 92 N.C. 805 (1885); State v. Myerfield, 61 N.C. 108 (1867), defendant may be held liable under G.S. 14-277.1 for conditional threats where, as here, the condition is one which she had no right to impose. Defendant's first assignment of error is overruled.

Defendant's remaining assignments of error are directed to comments by the trial judge. Her first contention is that the judge made a comment to the district attorney during her cross-examination which tended to cast doubt upon her credibility as a witness. We perceive no such intimation of opinion in the statement. The record contains only a fragment of a sentence. The rest of the statement was inaudible, rendering the audible portion virtually meaningless.

Defendant next contends that the judge, in summarizing the evidence for the jury, expressed an opinion as to defendant's credibility when he stated that there was evidence to show that defendant was emotional and upset. We disagree. The State presented evidence that defendant was emotional and upset when the events occurred, and, as the judge instructed the jury, evidence regarding defendant's apparent mental state was relevant to a determination of whether Mrs. Ives believed the threat would be carried out.

The judge also instructed the jury that there was evidence that Mrs. Ives was on her property when the events occurred. Again, this instruction is supported by uncontradicted evidence in the record, and, contrary to defendant's contention, such evidence is relevant to a determination of whether Mrs. Ives was within her rights in attempting to trim the rose bushes.

Finally, defendant contends that the judge committed error in instructing the jury that Mrs. Ives had a legal right to trim overhanging branches in her yard even though the roots of the plant might be growing on someone else's land. This is a correct statement of the law. It was also relevant to a determination of whether defendant had a right to prevent Mrs. Ives from trimming the rose bushes.

Defendant's assignments of error directed to comments by the trial judge are overruled. In defendant's trial and in the judgment entered, we find

No Error.

CLARK and ERWIN, JJ., concur.