State v. Bryant

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-62 NORTH CAROLINA COURT OF APPEALS Filed: 3 September 2013 STATE OF NORTH CAROLINA v. Craven County No. 11 CRS 53338 BRENDA YVETTE BRYANT Appeal by defendant from judgment entered 18 July 2012 by Judge Jay D. Hockenbury in Craven County Superior Court. Heard in the Court of Appeals 19 August 2013. Attorney General Roy Cooper, by Assistant Attorney General Joel L. Johnson, for the State. Unti & Lumsden LLP, by Margaret C. Lumsden, for defendantappellant. DILLON, Judge. Brenda Yvette Bryant (Defendant) appeals from a judgment entered based disorderly upon conduct. a jury Because verdict the finding State her presented guilty of sufficient evidence of the essential elements of disorderly conduct, we hold Defendant received a fair trial, free from error. -2At trial, the State s evidence tended to show that on the evening of around New 3 August Bern, following her. 2011, North Yvette Carolina Dixon when (Dixon) she was noticed driving Defendant Dixon had previously been involved with Raymond West, whom Defendant was then dating. When Dixon stopped at a convenience store, Defendant turned into a gas station across the street and began yelling at Dixon, calling her a bitch and telling her to come get him. While Dixon was getting a soda, West lot drove into the parking where Dixon was parked. Defendant then drove across the street and began blurting out words to both Dixon and West. Defendant kicked Dixon s car and ran back to her own car to get a box cutter. Defendant then came at Dixon and West with the box cutter, nearly striking West and scratching the paint job on Dixon s car. During the altercation, Defendant repeatedly swore at Dixon, calling her a bitch and mother-fucker. Dixon drove off and subsequently swore out a warrant against Defendant. At the close of the State s evidence, and again at the close of all the evidence, defense counsel made a motion for a directed verdict. The trial court motions to dismiss1 and denied both. 1 In a criminal case, a motion to treated the motions as The jury found Defendant dismiss for insufficient -3guilty of disorderly conduct and defense counsel moved to set aside the verdict, a request which the trial court denied. Defendant now argues the State presented insufficient evidence to send the charge of disorderly conduct to the jury or sustain the conviction. This Court reviews the trial court s denial of a motion to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). When ruling on a defendant s motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense. Id. Substantial evidence is evidence from which any rational trier of fact could find the fact to be proved beyond a reasonable doubt. The evidence must be viewed in the light most favorable to the State, and the State is entitled to every reasonable inference that is drawn therefrom. State v. McDowell, 329 N.C. 363, 389, 407 S.E.2d 200, 215 (1991) (citation and quotation marks omitted). [I]f there is substantial evidence whether direct, circumstantial, or both to support a finding that the offense charged has been evidence and a motion for a directed verdict have the same effect. State v. Mize, 315 N.C. 285, 290, 337 S.E.2d 562, 565 (1985). -4committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied. State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (citation and quotation marks omitted). The standard of review of a trial court s denial of a motion to set aside a verdict for lack of substantial evidence is the same as reviewing its denial of a motion to dismiss, i.e., whether there is substantial evidence of each essential element of the crime. State v. Duncan, 136 N.C. App. 515, 520, 524 S.E.2d 808, 811 (2000). To convict Defendant of disorderly conduct as charged in this case, the State was required to prove that she intentionally caused a public disturbance by making or using any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace. 288.4(a)(2) (2011). N.C. Gen. Stat. § 14- The following is the definition of public disturbance: Any annoying, disturbing, or alarming act or condition exceeding the bounds of social toleration normal for the time and place in question which occurs in a public place or which occurs in, affects persons in, or is likely to affect persons in a place to which the public or a substantial group has access. The places covered by this definition shall include, but not be limited to, highways, transport facilities, schools, -5prisons, apartment houses, places of business or amusement, or any neighborhood. N.C. Gen. Stat. § 14-288.1(8) (2011). Defendant argues she did not create a public disturbance or breach of the peace because only she, Dixon and West were present in the parking lot at the time of the altercation, and because her language, while profane, was not intended to provoke violent retaliation. Defendant s argument ignores, however, the fact that the altercation involved more than just abusive and profane language since she also kicked Dixon s car, came at Dixon with a box cutter, almost cut West with the box cutter, and scratched Dixon s car with the box cutter. neither section 14-288.1(8) nor 14-288.4(a)(2) Additionally, require large crowds to be present at the scene of the disturbance or the defendant have violence. The parking lot of the intention fact a that to the business incite multiple altercation with Dixon took and people place West in present to the is sufficient to constitute a public disturbance. Defendant s yelling at Dixon to come and get him and the subsequent altercation in the substantial evidence each of of conduct as charged in this case. parking the lot elements constitutes of disorderly Accordingly, we find no error -6in the trial court s denial of Defendant s directed verdict and to set aside the verdict. NO ERROR. Judges GEER and ERVIN concur. Report per Rule 30(e). motions for a

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