State v. Dale , 245 N.C. App. 497 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-105
Filed: 16 February 2016
Orange County, No. 12 CRS 52658
STATE OF NORTH CAROLINA
v.
WENDY M. DALE
Appeal by defendant from judgment entered 10 July 2014 by Judge Robert F.
Johnson in Orange County Superior Court. Heard in the Court of Appeals
13 August 2015.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde,
for the State.
Wendy Dale, pro se.
McCULLOUGH, Judge.
Wendy Dale (“defendant”) appeals from a judgment entered upon a jury verdict
finding her guilty of disorderly conduct in a public facility in violation of N.C. Gen.
Stat. § 14-132(a)(1), for which she received a suspended sentence of 30 days and 12
months of supervised probation along with court costs and a community service fee.
Defendant raises several issues on appeal including lack of subject matter jurisdiction
due to a defective indictment, instructional error, double jeopardy, and, by a motion
for appropriate relief (MAR) filed during the pendency of this appeal, facial and as
applied challenges to the constitutionality of N.C. Gen. Stat. § 14-132(a)(1). After a
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Opinion of the Court
careful consideration of each of defendant’s arguments, we find no error and uphold
her conviction.
I. Procedural Background
Defendant was tried before a jury and convicted of disorderly conduct in a
public building on 10 July 2015. Although defendant was represented by counsel at
trial, she has pursued her appeal and post-conviction proceedings pro se.1
Defendant timely appealed from the judgment entered on her conviction to this
Court on 24 July 2014. On that same date, defendant filed her first motion for
appropriate relief (the “Initial MAR”) with the trial court pursuant to N.C. Gen. Stat.
§ 15A-1414. The Initial MAR alleged that defendant was arrested without probable
cause and convicted without sufficient evidence of the offense charged, disorderly
conduct in a public building. The Initial MAR also alleged that the trial court erred
in refusing to instruct the jurors on defendant’s First Amendment right to free speech.
1 It appears that defendant based her purported notice of appeal on a previous version of N.C.
Gen. Stat. § 15A-1448(a)(4), which, until repealed in 1987, provided: “If there has been no ruling by
the trial judge on a motion for appropriate relief within 10 days after motion for such relief has been
made, the motion shall be deemed denied.” See 1997 N.C. Sess. Laws Ch. 1147 S. 29, repealed by 1987
N.C. Sess. Laws Ch. 624. Since it was repealed, that provision is of no legal effect. We note that
defendant, representing herself pro se in her post-conviction filings with the trial court and on appeal,
also has violated Rule 28 of the North Carolina Rules of Appellate Procedure by submitting her brief
in single-spaced, rather than double-spaced, text. See N.C. R. App. P. 28(j)(2)(A). Although the Rules
of Appellate Procedure apply equally to all parties, “whether acting pro se or being represented by all
of the five largest law firms in the state,” Bledsoe v. County of Wilkes, 135 N.C. App. 124, 125, 519
S.E.2d 316, 317 (1999), this nonjurisdictional defect is not “gross” or “substantial” enough to warrant
sanctions. See Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transport Co., Inc., 362 N.C. 191, 199,
657 S.E.2d 361, 366 (2008).
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Based on an erroneous calculation of the filing deadline, on 11 September 2014,
the trial court determined the Initial MAR was untimely and entered an order
denying the Initial MAR without a hearing on the merits (the “First Order”). On
26 September 2014, defendant filed a motion to vacate the First Order. The trial
court entered an order vacating the First Order on 19 November 2014.
On 3 October 2014, while defendant’s motion to vacate the First Order was
pending before the trial court, defendant filed an amended motion for appropriate
relief (the “Amended MAR”) as allowed by N.C. Gen. Stat. § 15A-1415(g). The
Amended MAR alleged errors within the scope of N.C. Gen. Stat. § 15A-1415
including that N.C. Gen. Stat. § 14-132(a)(1), the disorderly conduct statute
defendant was convicted of violating, is unconstitutionally overbroad. This argument
was not included in defendant’s Initial MAR.
On 10 December 2014, the trial court entered an order denying appropriate
relief (the “Second Order”) based on its review of “the Motion,” a trial transcript, and
other materials in the record. The Second Order does not define the term “the
Motion” or otherwise reference the Initial MAR or the Amended MAR, but it appears
from the content of the Second Order that the trial court addressed only the issues
raised in the Initial MAR. The Second Order does not determine the merits of the
claims added by defendant in the Amended MAR, including the claim that N.C. Gen.
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Stat. § 14-132(a)(1) is unconstitutional. Accordingly, it appears that the trial court
never determined the merits of defendant’s Amended MAR.
The record for defendant’s appeal to this Court was settled on 26 January 2015
by the expiration of the time allowed for the State to serve defendant with notice of
its approval of the proposed record or with an alternative proposed record.
On 3 August 2015, defendant filed a MAR in this Court (the “Appellate MAR”).
In the Appellate MAR, defendant makes the same constitutional claims as she did to
the trial court in the Amended MAR. Because the record on appeal has been settled,
defendant’s Appellate MAR is properly before this Court.
Although this Court ordered that a copy of the Appellate MAR and the State’s
response be forwarded to the trial court, those pleadings, through inadvertence, were
not forwarded. The complex procedural history of this case, along with missing
portions of the record, may explain the trial court’s order stating that it was a “bit
baffled as to what evidence or proceedings the Court of Appeals wanted” the trial
court to consider on remand.
On 30 November 2015, the trial court proceeded with a hearing in an effort to
comply with this Court’s remand order. The trial court conducted a hearing, but
neither defendant nor the State offered any evidence. The trial court made findings
of fact regarding defendant’s objections during trial and concluded as a matter of law
that defendant raised state and federal constitutional claims at trial.
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The trial court has not determined the merits of the constitutional claims in
defendant’s Amended MAR. Those claims, which are also raised in defendant’s
Appellate MAR, involve only issues of law and are now addressed in this opinion.
II. Factual Background
On 25 September 2012, defendant’s seventeen-year-old son was arrested by
Officer Joseph Glenn with the Carrboro Police Department (“CPD”) upon a warrant
charging him with failure to appear. While at the CPD, defendant’s son called
defendant, at which time Officer Glenn informed defendant that her son was being
arrested and taken before a magistrate. At that time, defendant became irate and
Officer Glenn informed defendant that she could speak to the magistrate.
Officer Glenn then transported defendant’s son to the magistrate’s office, a
courtroom, where the magistrate on duty set bond. When defendant’s son was unable
to post bond, a process Officer Glenn explained to defendant during a second call by
defendant’s son to defendant upon arrival at the Orange County Jail, Officer Glenn
began the jail admittance process.
At the time of defendant’s arrival at the facility, Officer Glenn was standing
with defendant’s son in the lobby of the jail, immediately outside of the magistrate’s
courtroom. When defendant came through the door visibly upset, Officer Glenn asked
defendant if she was the mother. Defendant then replied, “Yes, I’m his F-ing mother.”
Defendant was then informed that her son was going to be admitted to the jail
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Opinion of the Court
because he was unable to post bond. At that point defendant stated, “No, he’s coming
home with me.” When Officer Glenn once again said that her son could not post bond,
defendant screamed, “No, you’re going to give me my son now.” These events
transpired in the jail lobby in front of the magistrate’s courtroom.
Upon hearing defendant’s loud scream, Corporal Danotric Nash with the
Hillsborough Police Department, along with Officer Jason Winn, responded to the
area where defendant was yelling at Officer Glenn and said, “Ma’am, you have to
calm down, this is the lobby of the jail.” Defendant continued yelling, at which time
Corporal Nash advised her to step outside and walked her toward the door. When
Corporal Nash went to close the door, defendant resisted, banging loudly on the closed
door twice. Defendant stopped banging on the door when Corporal Nash informed
her she would be charged if she continued banging on the door or if she damaged any
property.
Corporal Nash then observed defendant talking on her cell phone and, after
she hung up, stated to defendant, “Ma’am, if you calm down, if you just go speak to
the magistrate. Or, your friend that you was on the phone with, or a Judge, maybe
he’ll undo the bond.” Defendant replied, “Shut the F up talking to me, shut the F up
talking to me.” Defendant was then advised to leave and directed to the parking lot
by Corporal Nash. According to Corporal Nash, defendant then grabbed him,
scratching the left side of his face behind his ear, causing him to bleed. Corporal
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Nash and Officer Winn then arrested defendant. At trial, defendant testified that
she thought Corporal Nash was going to grab her so she put up her hands in a
defensive movement, thereby making contact with Corporal Nash’s face.
Defendant was acquitted on the charge of assaulting an officer but convicted
of disorderly conduct in a public facility.
III. Discussion
A. Sufficiency of Charging Document
The facts of this case show that defendant, upset that her son was being arrested,
engaged in abusive conduct toward two officers who were in the lobby of the jail while
her son was being processed into the jail. The statute under which defendant was
charged makes it a misdemeanor for any person to “[m]ake any rude or riotous noise,
or be guilty of any disorderly conduct, in or near any public building or facility[.]” 2
N.C. Gen. Stat. § 14-132(a)(1) (2013). The charging document does not use the words
“rude or riotous noise” but instead states that the defendant did unlawfully “curse
and shout” at police officers in the jail lobby.
Without a valid warrant or indictment, a court lacks jurisdiction to proceed.
Challenges to the validity of an indictment may be raised at any stage in the
proceedings and we review the challenge de novo. State v. McKoy, 196 N.C. App. 650,
652, 675 S.E.2d 406, 409 (2009). In a misdemeanor case the charging document may
2 Defendant does not contest the fact that the lobby of a jail is a public facility.
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be a statement of charges instead of an indictment. See N.C. Gen. Stat. § 15A-922
(2013). Whether by statement of charges or by indictment, the charging document
shall require:
[a] plain and concise factual statement in each count which,
without allegations of an evidentiary nature, asserts facts
supporting every element of a criminal offense and the
defendant's commission thereof with sufficient precision
clearly to apprise the defendant or defendants of the conduct
which is the subject of the accusation.
N.C. Gen. Stat. § 15A–924(a)(5) (2013).
An indictment has been held to be sufficient “if it charges the offense in a plain,
intelligible and explicit manner[.]” State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d
677, 680 (1972). This Court recently described the requirements of a valid
indictment, which apply equally to a statement of charges, as follows:
Pursuant to N.C. Gen. Stat. § 15A-924(a)(5) (2013), a valid
indictment must contain ‘‘[a] plain and concise factual
statement in each count which, without allegations of an
evidentiary nature, asserts facts supporting every element of
a criminal offense and the defendant’s commission thereof
with sufficient precision clearly to apprise the defendant or
defendants of the conduct which is the subject of the
accusation.’’ An indictment ‘‘is sufficient in form for all intents
and purposes if it expresses the charge against the defendant
in a plain, intelligible, and explicit manner.’’ N.C. Gen. Stat.
§ 15–153 (2013). “[T]he purpose of an indictment . . . is to
inform a party so that he may learn with reasonable certainty
the nature of the crime of which he is accused[.]” State v.
Coker, 312 N.C. 432, 437, 323 S.E.2d 343, 347 (1984). The trial
court need not subject the indictment to ‘‘hyper technical
scrutiny with respect to form.’’ In re S.R.S., 180 N.C. App. 151,
153, 636 S.E.2d 277, 280 (2006). ‘‘The general rule in this
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Opinion of the Court
State and elsewhere is that an indictment for a statutory
offense is sufficient, if the offense is charged in the words of
the statute, either literally or substantially, or in equivalent
words.’’ State v. Greer, 238 N.C. 325, 328, 77 S.E.2d 917, 920
(1953).
State v. Simpson, __ N.C. App. __, __, 763 S.E.2d 1, 3 (2014).
As stated earlier, defendant was tried upon a statement of charges (AOC
Form–CR-120) drafted by the Assistant District Attorney which alleged:
I, the undersigned, upon information and belief allege that
on or about the date of offense shown and in the county
named above, the defendant named above did unlawfully
and willfully curse and shout at the officers J. Glenn of the
Carrboro Police Department and officer D. Nash of the
Hillsborough Police Department while inside the lobby of
the Orange County Jail[.]
The statement of charges also references N.C. Gen. Stat. § 14-132(a)(1), which
provides that “[i]t is a misdemeanor if any person shall . . . [m]ake any rude or riotous
noise, or be guilty of any disorderly conduct, in or near any public building or
facility[.]” N.C. Gen. Stat. § 14-132(a)(1) (2013).
It is difficult to discern from defendant’s brief exactly what she complains of
with regard to the notice required in a charging document as she seems to merge her
arguments regarding the jury instructions with her argument as to the sufficiency of
the notice provided by the statement of charges.
While the statement of charges does not use the phrase “rude or riotous noise”
and instead charges that defendant did “curse and shout” at the officers while in the
lobby of the jail, even defendant acknowledges that this satisfied the first prong of
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the elements of the offense. In her brief, defendant properly states the elements of
the offense of which she has been convicted stating: “Accordingly, from the language
of the statute, the elements of this crime are: First, that the defendant made a rude
or riotous noise or is guilty of disorderly conduct; and second, that such rude or riotous
noise or disorderly conduct occurred in or near a public building or facility.”
Defendant then goes on to acknowledge that “curse and shout” are equivalent to
making a “rude or riotous noise” when she states: “The concise allegation in the
Warrant and Misdemeanor Statement of Charges that I ‘cursed and shouted’ in the
lobby of the jail may very well support the ‘rude or riotous noise’ prong of the first
element of Disorderly Conduct in a Public Building pursuant to N.C. Gen Stat. § 14-
132(a)(1)[.]”
We agree the charging document in this case was sufficient because it charged
the offense in N.C. Gen. Stat. § 14-132(a)(1) “in the words of the statute, either
literally or substantially, or in equivalent words.” Simpson, __ N.C. App. at __, 763
S.E.2d at 3. There is no practical difference between “curse and shout” and “rude or
riotous noise.” Either phrase provides the defendant more than adequate notice of
what behavior is alleged to be the cause of the charges. In other cases our courts have
found common sense definitions proper when upholding indictments. For instance,
in State v. Cockerham, this Court held an indictment charging a defendant with
discharging a firearm into an occupied property was not defective where the
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indictment read “that dwelling known as apartment ‘D-1’, located at 2733 Wake
Forest Highway, Durham, North Carolina. . . .” 155 N.C. App. 729, 735, 574 S.E.2d,
694, 698 (2003). The word “apartment” does not appear in the statute, which instead
lists “building, structure . . . or enclosure.” N.C. Gen. Stat. § 14-34.1(a) (2013). Thus,
we have held that words in an indictment or other charging document which fit
within the definition of the words in a statute sufficiently describe the crime charged
so as to provide the court with jurisdiction. In other words, we properly interpret
charging documents when we utilize normal definitions of the words in the document,
even if they are not the exact same words as in the statute. This notice pleading has
replaced the use of “magic words” and allows for a less exacting standard, so long as
the defendant is properly advised of the charge against him or her.
In analyzing the phrase “rude and riotous noise” in N.C. Gen. Stat. § 14-
132(a)(1), we note the ordinary definitions. “Rude” is defined as “ill-mannered;
discourteous.” The American Heritage Dictionary, 1076 (Second College Edition
1985). Is not a person who is cursing and shouting acting in an ill-mannered,
discourteous way? The same dictionary defines “riot” as “an unrestrained outbreak,
as of laughter or passions” and “riotous” as “boisterous.” Id. at 1064. When one is
shouting curses at another person, are they not engaged in an unrestrained outbreak
of passion? Our Supreme Court has long believed so. See State v. Horne, 115 N.C.
739, 740-41, 20 S.E. 443, 443 (1894).
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The words in the charging document in this case fit within the definition for
the behavior described in the statute and are thus sufficient to confer jurisdiction so
that the trial could proceed. Thus, defendant’s claim that the statement of charges
is defective is overruled.
B. Instructional Error
Defendant next argues that the trial court committed instructional error by
giving pattern jury instruction N.C.P.I. -- Crim. 236A.31 (1999). The court instructed
the jury as follows:
Now, the Defendant, Wendy Dale, has been charged with
disorderly conduct. For you to find the Defendant, Wendy
Dale, guilty of this offense, the State must prove four
things beyond a reasonable doubt.
First, that the Defendant, Wendy Dale, willfully and
without justification or excuse, made or used an utterance,
gesture or abusive language.
Secondly, that such utterance, gesture or abusive language
was intended and plainly likely to provoke a violent
retaliation, and thereby cause a breach of the peace.
Third, that such utterance, gesture or abusive language
was a public disturbance. A public disturbance is an
annoying, disturbing or alarming act or condition occurring
in a public place that is beyond what would normally be
tolerated in that place at that time. The Orange County jail
lobby is a public place.
And fourth, that such public disturbance was intentionally
caused by the Defendant, Wendy Dale.
If you find from the evidence beyond a reasonable doubt
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that on or about the alleged date, September 25th, 2012,
the Defendant, Wendy Dale, willfully and intentionally,
without justification or excuse, made or used an utterance,
gesture or abusive language that was intended and plainly
likely to provoke violent retaliation, and thereby caused a
breach of the peace, and that such utterance, gesture or
abusive language was a public disturbance, it would be
your duty to return a verdict of guilty.
At the conclusion of the charge, defendant’s counsel made no suggestions for changes
and did not object. Defendant now claims the error amounts to plain error because it
is prejudicial.
This Court’s review of jury instructions is limited to a review for plain error
when the issues concerning the instructions are not preserved below. See N.C. R.
App. P. 10(a)(4) (2015).
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice-that, after examination of the entire
record, the error had a probable impact on the jury's
finding that the defendant was guilty. Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affects the fairness, integrity or public reputation of
judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations
and quotation marks omitted).
In the instructions issued in this case, the trial court required the State to
prove an element that was not required by the charging statute, that being the
requirement that the “utterance, gesture or abusive language that was intended and
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Opinion of the Court
plainly likely to provoke violent retaliation, and thereby caused a breach of the
peace[.]” While defendant may argue that her statements were not likely to so
provoke, that is an issue of fact to be resolved by the jury. When she challenged the
authority of the court to order her son into detention and stated she was going to take
him home, without regard to the court process and the requirements of bond, it was
within the jury’s prerogative to find otherwise.
Furthermore, as the State had to prove more than was required in order to
obtain a conviction, there is no prejudice to defendant. See State v. Farrar, 361 N.C.
675, 679, 651 S.E.2d 865, 867 (2007) (such variance is not fatal when variance
benefits the defendant). In Farrar our Supreme Court held “the trial court’s charge
to the jury . . . benefitted [the] defendant[ ] because the instructions required the
State to prove more elements than those alleged in the indictment. Therefore, there
was no prejudicial error in the instructions.” Id.
Similarly in this case, it is clear defendant benefitted from the charge given, to
which no objection was made. It is unlikely defendant would have been acquitted
had the trial court instructed the jury by tracking the statute or had given the charge
approved in State v. Leyshon, 209 N.C. App. 755, 710 S.E.2d 710, COA 10-556
(1 March 2011) (unpub.), available at 2011 WL 705140, appeal dismissed, 365 N.C.
203, 710 S.E.2d 52 (2011), an unpublished case cited in both parties’ briefs. The
instruction in Leyshon provided the jury the following guidance:
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[I]f you find from the evidence in this case and beyond a
reasonable doubt that on or about the alleged date of
July 14, 2008 that this Defendant did make a rude or
riotous noise or engage in disorderly conduct within the
Watauga County Courthouse. If you find each of those
things beyond a reasonable doubt, then it would be your
duty to return a verdict finding the Defendant guilty of
Disorderly Conduct.
2011 WL 705140 at *4.
A simple comparison of the two instructions demonstrates the State had to
prove much more to obtain a conviction in this case than was actually required. Thus,
in accordance with Farrar, we hold the trial court did not commit prejudicial error,
much less plain error, by giving the instruction now being contested. Defendant’s
argument is overruled.
C. Double Jeopardy
Defendant next argues that because she was acquitted of resisting, delaying,
or obstructing an officer in violation of N.C. Gen. Stat. § 14-223 (2013), she must be
acquitted of the charge for which she was convicted, disorderly conduct in a public
facility. Defendant asserts the argument as double jeopardy.
Double jeopardy is prohibited under both the U.S. Constitution and the North
Carolina Constitution’s “Law of the Land Clause.” See U.S. Const. amend. V; State
v. Gardner, 315 N.C. 444, 464, 340 S.E.2d 701, 714 (1986). A plea under former
jeopardy fails unless it is grounded both in law and fact. If the two offenses contain
elements which differ then the offense is not well grounded in law. State v.
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McAllister, 138 N.C. App. 252, 256, 530 S.E.2d 859, 862, appeal dismissed, 352 N.C.
681, 545 S.E.2d 724 (2000). To be well grounded in fact, the same evidence must
support a conviction in both cases. State v. Ray, 97 N.C. App. 621, 623, 389 S.E.2d
422, 424 (1990). As can be readily seen from the previous discussion of the elements
for the offense of disorderly conduct, the two offenses have different elements and the
proof of the disorderly conduct charge does not require any proof that the prohibited
conduct obstructed or resisted an officer. This argument is baseless and is overruled.
D. Constitutionality of N.C. Gen. Stat. § 14-132(a)(1)
Defendant, in her Appellate MAR, contests the constitutionality of N.C. Gen.
Stat. § 14-132(a)(1) both as enacted and as applied to her. In the Appellate MAR,
defendant argues that she had a First Amendment right to curse and shout in a public
facility at officers who were in the process of jailing her son despite being warned that
she was in the lobby of the jail and had to calm down. This Court is not going to
engage in a lengthy discussion of the void for vagueness doctrine as our Supreme
Court has already decided that the statute at issue here is not void for vagueness.
See In Re Burrus, 275 N.C. 517, 532, 169 S.E.2d 879, 888 (1969), aff’d sub nom.,
McKeiver v. Pennsylvania, 403 U.S. 528 (1971). In that case the statute at issue
provided that if a person “shall make any rude or riotous noise or be guilty of any
disorderly conduct in any public building of any county, or shall commit any nuisance
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in such building, he shall be guilty of a misdemeanor[.]” Id. at 531, 169 S.E.2d at 888.
Our Supreme Court went on to say:
There is nothing vague or indefinite about these statutes.
Men - even children - of common intelligence can
comprehend what conduct is prohibited without overtaxing
the intellect. Judges and juries should be able to interpret
and apply them uniformly. There, as here, defendants
argued that the statute was void because its prohibitions
were uncertain, vague and indefinite. In upholding that
statute, the court said: “It is difficult to believe that the
defendants are as mystified as to the meaning of these
ordinary English words as . . . they profess to be in their
brief. Clearly, they have grossly underestimated the
powers of comprehension possessed by ‘men of common
intelligence.’ ” That observation seems appropriate here.
The Supreme Court of the United States in sustaining a
conviction in the courts of New Jersey for a violation of an
ordinance forbidding the use of sound trucks emitting “loud
and raucous” sound, said: “The contention that the section
is so vague, obscure and indefinite as to be unenforceable
merits only a passing reference. This objection centers
around the use of the words ‘loud and raucous.’ While these
are abstract words, they have through daily use acquired a
content that conveys to any interested person a sufficiently
accurate concept of what is forbidden.” Kovacs v. Cooper,
336 U.S. 77, 93 L. Ed. 513, 69 S. Ct. 448, 10 A.L.R. 2d 608
(1949).
Id. at 532, 169 S.E.2d at 888-89 (internal citation omitted).
As our Supreme Court has found a statute that is virtually identical to the
statute as the one now in force to be constitutional, this Court is bound to uphold the
constitutionality of N.C. Gen. Stat. § 14-132 (a)(1). In Re: Civil Penalty, 324 N.C. 373,
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384, 379 S.E.2d 30, 37 (1989). Defendant’s argument that the statute is
unconstitutional is thus overruled.
Defendant’s argument that the statute as applied to her is unconstitutional
also lacks merit. As we have found the statute to be constitutional, certainly her
misbehavior in the lobby of the jail adjacent to the magistrate’s courtroom violates its
proscription of rude or riotous conduct in a public facility, or at the very least, raised
a jury issue now resolved against defendant. This argument is also overruled.
IV. Conclusion
Having found that the statement of charges was not defective, that defendant’s
acquittal of resisting an officer in District Court did not prohibit her being tried for
disorderly conduct in Superior Court, that the trial court did not commit prejudicial
error in its jury instructions, and the statute in question is both constitutional upon
its face and as applied, we find defendant’s trial was conducted free of prejudicial
error. Thus, we uphold her conviction.
NO ERROR
Judge STROUD concurs.
Judge INMAN concurs in result only.
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