245 N.C. App. 497
N.C. Ct. App.2016Background
- On 25 Sept. 2012 Wendy M. Dale became loudly upset in the Orange County Jail lobby while her son was being processed on a failure-to-appear warrant; she cursed, shouted, resisted officers' attempts to calm her, banged on a door, and allegedly scratched Corporal Nash.
- Dale was tried by jury in Orange County Superior Court: acquitted of assaulting an officer but convicted of disorderly conduct in a public facility under N.C. Gen. Stat. § 14-132(a)(1); sentence: 30 days suspended, 12 months supervised probation, costs, community service fee.
- Charging instrument (AOC CR-120) described that Dale had “curse[d] and shout[ed]” at officers in the jail lobby and cited § 14-132(a)(1).
- Dale filed post-conviction motions (MARs) asserting defects in the charging document, instructional error, double jeopardy, and facial and as-applied First Amendment overbreadth/vagueness challenges to § 14-132(a)(1); procedural confusion left the trial court’s order unclear as to some amended claims.
- The Court of Appeals reviewed: (1) sufficiency of the charging document, (2) jury instruction claimed error, (3) double jeopardy claim arising from acquittal on a related charge, and (4) constitutionality of § 14-132(a)(1) on its face and as applied.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Dale) | Held |
|---|---|---|---|
| Sufficiency of charging document | The statement of charges alleging Dale “cursed and shouted” and citing § 14-132(a)(1) adequately informed defendant of the offense. | The indictment/statement of charges was defective because it did not use the statutory phrase “rude or riotous noise.” | Charge was sufficient; “curse and shout” are equivalent to “rude or riotous noise.” No jurisdictional defect. |
| Jury instruction error | The court’s instruction (pattern N.C.P.I. 236A.31) required proof that words were intended and plainly likely to provoke violent retaliation — an extra element benefitting defendant. | The instruction was erroneous and prejudicial; Dale preserved plain-error review. | No prejudicial or plain error: instruction required more than statute, thus benefitted Dale; conviction stands. |
| Double jeopardy from acquittal on resisting/obstruction | The offenses (disorderly conduct vs. resisting/obstructing) have different elements; separate prosecutions are permitted. | Acquittal on resisting/delaying/obstructing an officer should bar conviction for disorderly conduct. | Rejected: elements differ and the same evidence need not support both convictions; double jeopardy inapplicable. |
| Constitutionality of § 14-132(a)(1) (facial and as-applied) | The statute is neither void for vagueness nor overbroad; prior North Carolina precedent upholds similar language; conduct here falls within the statute. | Dale asserted First Amendment and vagueness/overbreadth challenges to the statute and its application to her conduct. | Rejected: statute upheld on its face and as applied; controlling North Carolina precedent compels constitutionality. |
Key Cases Cited
- State v. McKoy, 196 N.C. App. 650 (N.C. Ct. App.) (indictment challenges reviewed de novo)
- State v. Taylor, 280 N.C. 273 (N.C.) (an indictment is sufficient if it charges the offense in a plain, intelligible, and explicit manner)
- State v. Simpson, 763 S.E.2d 1 (N.C. Ct. App.) (explaining § 15A-924 indictment requirements)
- State v. Cockerham, 155 N.C. App. 729 (N.C. Ct. App.) (permitting common-sense definitions in charging documents)
- State v. Farrar, 361 N.C. 675 (N.C.) (jury instructions that impose extra elements may benefit defendant and avoid prejudice)
- In re Burrus, 275 N.C. 517 (N.C.) (upholding similar disorderly-conduct statute against vagueness challenge)
- Kovacs v. Cooper, 336 U.S. 77 (U.S.) (ordinary words like “loud and raucous” convey sufficient concept to support regulation of sound)
- In re Civil Penalty, 324 N.C. 373 (N.C.) (state courts bound to follow Supreme Court precedent on facial constitutionality)