State v. Patton ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-994
Filed 01 August 2023
Buncombe County, Nos. 19CRS080481, 20CRS091146 & 21CRS000101
STATE OF NORTH CAROLINA
v.
RONALD EUGENE PATTON, Defendant.
Appeal by Defendant from judgments entered 13 November 2021 by Judge
Karen Eady-Williams in Buncombe County Superior Court. Heard in the Court of
Appeals 9 May 2023.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Stephanie A. Brennan, for the State.
W. Michael Spivey for Defendant-Appellant.
RIGGS, Judge.
Defendant Ronald Eugene Patton appeals from several judgments entered
after a jury found him guilty of second-degree forcible sexual offense, intimidating or
interfering with a witness, and attaining habitual felon status. On appeal, Mr.
Patton contends that the trial court: (1) lacked jurisdiction over the interfering with
a witness charge because the criminal conduct alleged in the indictment—bribery—
is not encompassed in the relevant statute, N.C. Gen. Stat. § 14-226 (2021); (2) erred
in denying his motion to dismiss that same charge for insufficient evidence of the
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requisite criminal intent; and (3) prejudicially or plainly erred in its jury instruction
on witness interference. After careful review, we hold that: (1) bribery of a witness is
criminalized by N.C. Gen. Stat. § 14-226 such that the trial court had jurisdiction
over the charged offense; (2) the trial court properly denied Mr. Patton’s motion to
dismiss that charge; and (3) Mr. Patton’s alleged jury instruction arguments are
without merit.
I. FACTUAL AND PROCEDURAL HISTORY
J.L.A. (“Jane”) moved to Asheville, North Carolina from Ohio in February
2017. One day when she was waiting for the bus to take her to work, Mr. Patton
approached her and offered her some marijuana. Jane declined and boarded the bus
without further conversation with Mr. Patton. Later, Jane again ran into Mr. Patton
at the bus station as she was heading home; this time, Jane took down Mr. Patton’s
number in case she ever wanted to buy marijuana from him.
Jane waited to contact Mr. Patton for some time, but she did eventually text
message him to ask about buying marijuana. Mr. Patton obliged Jane’s request and
began selling marijuana to her. The two struck up a friendship, with Jane calling
Mr. Patton “grandpa” because he was twice her age. After several drug transactions,
Mr. Patton told Jane that he would give her $40 worth of marijuana in exchange for
sex; Jane responded by cursing at him and threatening to cut off contact.
Jane ceased talking to Mr. Patton after the above exchange. She resumed
contact with him out of desperation, and Mr. Patton gave her furniture and clothing
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and helped her buy a car. He also continued to supply her with marijuana and make
sexual comments to her, though Jane never reciprocated with any showing of
romantic or sexual interest.
On the night of 10 January 2019, Mr. Patton and Jane were together at her
house drinking wine, smoking marijuana, and watching movies. Mr. Patton ended
up staying over at Jane’s house, as he had arrived after the buses had ceased running
for the evening. Jane eventually fell asleep on the floor while Mr. Patton continued
to watch TV on her couch. She later awoke to Mr. Patton grinding his groin against
her backside through her blanket and leggings. Jane told Mr. Patton to stop and get
off her, but he instead held her down, shoved her head into a pillow, and continued
to thrust against her while groping her body. Jane fought back against Mr. Patton,
punching and scratching him in the face. After getting free and heading for the front
door to escape, Jane was grabbed from behind by her hair and dragged into the
bedroom by Mr. Patton.
Once in the bedroom, Mr. Patton released Jane to let her go to the bathroom;
as soon as she was finished, he grabbed her by the hair again. Mr. Patton then told
Jane to fellate him and that he would strip her and tie her up if she refused. Jane
refused and lied to him about having HIV in the hopes that he would not rape her;
Mr. Patton instead continued to try and force his penis into her mouth. He then
pushed her back onto the bed and tried to smother her with a pillow. When Jane
continued to struggle, Mr. Patton wrapped a cell phone charger cord around her neck
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to choke her. Mr. Patton eventually forced his penis into Jane’s mouth and
ejaculated, causing her to vomit.
Mr. Patton released Jane, and she immediately went to the bathroom to
continue vomiting. When she returned to the bedroom, Mr. Patton held her by her
wrist and walked her through the house as he collected his belongings. He then left
the house and got into a car that was waiting for him outside, whereupon Jane called
the police to report the assault. Law enforcement responded to the call, interviewed
Jane, photographed the scene, and collected physical evidence corroborating Jane’s
account. Jane went to the hospital with a police officer, where DNA evidence was
collected from Jane’s hair, fingernails, nose, and cheek.
On 4 February 2019, Mr. Patton was indicted for one count each of first-degree
forcible sex offense, first-degree kidnapping, and assault by strangulation. After Mr.
Patton’s arrest and while he was in jail, Jane received a call from an inmate,
purportedly named “Richie,” at the Buncombe County Jail. When Jane answered the
call and asked who was calling, Mr. Patton identified himself and the following
conversation ensued:
MR. PATTON: This is Gene.
JANE: Why are you calling me?
MR. PATTON: If you’re still in Asheville I’m gonna try and
send you some money.
JANE: This is who?
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MR. PATTON: This is Gene.
JANE: Why are you calling me? You’re not supposed to be
talking to me.
MR. PATTON: I got $1,000 for ya.
Jane immediately hung up the phone; her tone of voice during the conversation
clearly conveyed a sense of distress. Mr. Patton called Jane again, but she did not
answer because she had blocked the number. Jane informed law enforcement of the
call and, on 1 March 2021, Mr. Patton was indicted with intimidating or interfering
with a witness in violation of N.C. Gen. Stat. § 14-226.
The State obtained a superseding indictment for forcible sexual offense and an
additional indictment for attaining habitual felon status ahead of trial. At trial, Jane
testified consistent with the above recitation of the facts, and the jailhouse phone call
was published to the jury. Jane testified that, after receiving the call, “I was shocked,
because, like, you’re not supposed to be contacting me. . . . I felt like he was trying to
bribe me trying to get out of what he done to me, like, no.”
Mr. Patton’s counsel moved to dismiss the charges against him at the close of
the State’s case-in-chief and at the close of all evidence; the trial court denied both
motions. The trial court then held the charge conference, during which the parties
discussed the appropriate instruction for the charge of interfering with a witness.
That conversation included the following objection from Mr. Patton’s counsel
concerning reference to the specific act of offering Jane $1,000 in the trial court’s
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proposed instruction:
[T]hat instruction . . . that Your Honor is laying out . . . is
not, you know, a crime. He said he had a thousand dollars.
I think that ought to read probably bribery based on the
way their indictment reads.
....
I think bribery based on their indictment is what needs to
be in there, by bribing her.
....
Because, you know, my contention is that . . . a thousand
dollars is not bribery. You know, maybe he was getting
close to it, but I think that would be the question they
decide is him stating that he has a thousand dollars, is that
in fact bribery. So it should just read bribery.
After a lengthy back-and-forth with the parties, the trial court resolved to
instruct the jury disjunctively, “so if they considered calling [Jane] before his trial
and stating that he had a thousand dollars for her that would be the substitute for
bribery. They could look at it as bribery or the calling her.” The final instruction was
given as follows:
For you to find the defendant guilty of this offense the
[S]tate must prove four things beyond a reasonable doubt.
First, that a person was summoned as a witness in a court
of this state.
Second, that the defendant attempted to deter any person
who was summoned as a witness in the defendant’s case.
Third, that the defendant acted intentionally.
And fourth, that the defendant did so by bribery or by
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calling the victim before his trial and stating he had $1,000
for her.
If you find from the evidence beyond a reasonable doubt
that on or about the alleged date the person was acting as
a witness in the defendant’s case in a court of this state,
and that the defendant . . . intentionally attempted to deter
by bribery or by calling the victim before his trial and
stating he had $1,000 for her, it would be your duty to
return a verdict of guilty.
After deliberations, the jury returned guilty verdicts on second-degree forcible
sexual offense, intimidating or interfering with a witness, and attaining habitual
felon status, but acquitting Mr. Patton of assault by strangulation. The trial court
sentenced Mr. Patton to consecutive sentences of 146 to 188 and 146 to 236 months’
imprisonment. Mr. Patton gave oral notice of appeal at the conclusion of sentencing.
II. ANALYSIS
Mr. Patton’s appeal asserts the existence of several errors in connection with
the interfering with a witness conviction. First, he contends that the trial court
lacked jurisdiction because the conduct alleged in the indictment—attempted bribery
with $1,000—does not fall within his preferred interpretation of the statute defining
the offense. Second, he argues that the trial court erred in denying his motion to
dismiss based on inadequate evidence of intent to deter Jane from testifying. Third,
he asserts plain error in the trial court’s failure to instruct on the allegedly necessary
element of threatened harm, prejudicial error in failure to instruct on the intent to
deter Jane from testifying specifically, prejudicial error in its disjunctive instruction
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regarding attempted bribery or payment of $1,000, and constitutional error on the
basis that the disjunctive instruction violated his right to a unanimous jury verdict.
We address each argument in turn, ultimately holding that Mr. Patton received a
trial free from error.
A. Bribery and N.C. Gen. Stat. § 14-226In his first argument, Mr. Patton contends that attempted bribery of a witness
does not fall within the conduct criminalized by N.C. Gen. Stat. § 14-226(a). That
statute provides:
If any person shall by threats, menaces or in any other
manner intimidate or attempt to intimidate any person
who is summoned or acting as a witness in any of the courts
of this State, or prevent or deter, or attempt to prevent or
deter any person summoned or acting as such witness from
attendance upon such court, the person shall be guilty of a
Class G felony.
N.C. Gen. Stat. § 14-226(a).
Mr. Patton argues that a defendant can only violate the statute in two ways:
(1) by intentionally threatening or menacing a witness to
intimidate or attempt to intimidate the witness, or;
(2) by intentionally threatening, or menacing a witness to
deter, or attempt to prevent or deter the witness from
attending court.
Under this reading, bribing a witness does not fall within the statute because it is not
a threat designed to intimidate a witness or deter her from testifying. But, as rightly
argued by the State and explained infra, Mr. Patton’s interpretation fails because it:
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(1) is contrary to the plain language and intent of the statute; and (2) results in a
reading that renders one of its provisions redundant.
1. Standard of Review
Whether an indictment is facially valid—and thus sufficient to confer subject
matter jurisdiction on the trial court—is reviewed de novo. State v. Stephenson, 267
N.C. App. 475, 478, 833 S.E.2d 393, 397 (2019). This same de novo standard applies
to the interpretation of criminal statutes. Id. at 478-79, 833 S.E.2d at 397.
2. N.C. Gen. Stat. § 12-226 Criminalizes Bribery of a Witness
The pertinent indictment alleged that Mr. Patton “unlawfully, willfully and
feloniously . . . did by bribery, attempt to deter [Jane] from attending court by offering
her $1,000.00,” in violation of N.C. Gen. Stat. § 14-226. Mr. Patton now argues that
this conduct did not fall within the statute by putting forth an interpretation that
criminalizes two types of conduct: “‘intimidation’ of a witness in general . . . [and]
intimidation for the specific purpose of deterring a witness from attending court.”
This reading is unsupported by the plain language of the statute and contravenes a
key canon of statutory construction.
The relevant statutory provision prohibits intimidation of witnesses or
attempts to deter or interfere with their testimony “by threats, menaces or in any
other manner.” N.C. Gen. Stat. § 14-226(a) (emphasis added). The emphasized
language, given its plain and ordinary meaning, straightforwardly expands the scope
of prohibited conduct beyond “threats” and “menaces” to include any other act that
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intimidates a witness or attempts to deter or interfere with their testimony. Contrary
to Mr. Patton’s assertion, there is no ambiguity that arises from this phrasing, and
we need not rely on any canons of statutory construction to discern the legislative
will. See, e.g., Swauger v. Univ. of N.C. at Charlotte, 259 N.C. App. 727, 817 S.E.2d
434 (2018) (“Where there is no ambiguity, this Court does not employ the canons of
statutory interpretation, and instead gives the words their plain and definite
meaning.” (cleaned up)). See also State v. Ross, 272 N.C. 67, 71, 157 S.E.2d 712, 714-
15 (1967) (noting that the canon of ejusdem generis applies only where a statute is
ambiguous, and holding that the legislature’s use of “any guardian, administrator,
executor, trustee, or any receiver, or any other fiduciary” in an embezzlement statute
showed a “manifest purpose . . . [t]o enlarge the scope of the embezzlement statute,”
as “[t]he words, ‘or any other fiduciary’, show clearly that the General Assembly did
not intend to restrict the application of the [statute] to receivers.”).
This reading is fully in accord with the intent of the statute, as “[t]he gist of
this offense is the obstruction of justice.” State v. Neely, 4 N.C. App. 475, 476 166
S.E.2d 878, 879 (1969).1 As we have since observed, “Neely . . . considers ‘attempting
1 To be clear, and as correctly argued by both Mr. Patton and the State in their briefs, the
statute is not co-extensive with the common law offense of obstruction of justice. For example,
destroying evidence is an obstruction of justice that does not fall within the scope of the statute. See,
e.g., Jones v. City of Durham, 183 N.C. App. 57, 59, 643 S.E.2d 631, 633 (2007) (holding allegations of
destruction of videotape evidence from a police dashboard camera sufficed to allege the common law
offense of obstruction of justice). But this statute, as with other related statutes, criminalizes a specific
subset of acts that would otherwise fall within the larger common law crime. See, e.g., N.C. Gen. Stat.
§ 14-225.2 (2021) (criminalizing harassment of a juror). Our holding that bribery constitutes an illegal
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to intimidate’ a witness, ‘attempting to threaten’ a witness, and ‘attempting to
prevent a witness from testifying’ as undistinguished parts of a single offense under
N.C. Gen. Stat. § 14-226.” State v. Clagon, 279 N.C. App. 425, 434, 865 S.E.2d 343,
349 (2021) (cleaned up) (citing Neely, 4 N.C. App. at 476, 166 S.E.2d at 879).
Even were the statute ambiguous, Mr. Patton’s reading renders the second
category of criminalized conduct redundant in violation of our statutory construction
canons. See State v. Morgan, 372 N.C. 609, 614, 831 S.E.2d 254, 258 (2019) (“We are
further guided in our decision by the canon of statutory construction that a statute
may not be interpreted in a manner which would render any of its words
superfluous. . . . [A] statute must be considered as a whole and construed, if possible,
so that none of its provisions shall be rendered useless or redundant.” (cleaned up)).
Per Mr. Patton’s Reply Brief, “one section of the statute addresses ‘intimidation’ of a
witness in general while the second addresses intimidation for the specific purpose of
deterring a witness from attending court.” But the former crime, under Mr. Patton’s
own formulation, necessarily encompasses the latter, with both subject to the same
felony offense classification. Mr. Patton’s reading thus renders half of the statute
surplusage; by way of a hypothetical, it would be entirely redundant to read a
statutory provision as separately criminalizing both “striking a dog” and “striking a
Dalmatian” as Class B felonies. Because Mr. Patton’s preferred reading is both
act under the relevant statute does not expand the statute to entirely encompass the broader crime of
obstruction of justice.
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contrary to the statute’s plain language and renders one of the statute’s provisions
into surplusage, we hold that the indictment alleging Mr. Patton’s attempted bribery
of Jane in violation of N.C. Gen. Stat. § 14-226 was sufficient to vest the trial court
with subject matter jurisdiction.
B. Motion to Dismiss
As an alternative to his first argument, Mr. Patton argues that the trial court
erred in denying his motion to dismiss the interfering with a witness charge because
the State failed to offer sufficient evidence of bribery with the specific intent to deter
Jane from testifying. But, contrary to Mr. Patton’s argument, the record contains
sufficient circumstantial evidence from which a jury could reasonably infer that Mr.
Patton intended to dissuade Jane from acting as a witness. We therefore hold that
the trial court properly denied Mr. Patton’s motion.
1. Standard of Review
The standard of review for a motion to dismiss is well
known. A defendant’s motion to dismiss should be denied
if there is substantial evidence of: (1) each essential
element of the offense charged, and (2) of defendant’s being
the perpetrator of the charged offense. Substantial
evidence is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. The Court
must consider the evidence in the light most favorable to
the State and the State is entitled to every reasonable
inference to be drawn from that evidence. Contradictions
and discrepancies do not warrant dismissal of the case but
are for the jury to resolve.
State v. Teague, 216 N.C. App. 100, 105, 715 S.E.2d 919, 923 (2011) (cleaned up).
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2. Evidence of Intent
Intent is seldom provable by direct evidence; as such, circumstantial evidence
is commonly—if not necessarily—relied upon to prove state of mind. State v.
Gammons, 260 N.C. 753, 756, 133 S.E.2d 649, 651 (1963). Thus, the State was not
required to introduce evidence of Mr. Patton explicitly offering Jane $1,000 for the
express purpose of dissuading her from testifying. And the circumstantial evidence
that the State did introduce in this case supports a reasonable inference that Mr.
Patton acted with just that intent given the context in which he made the offer. See,
e.g., State v. Taylor, 379 N.C. 589, 609, 866 S.E.2d 740, 756 (2021) (noting on review
of a true threats conviction that, in discerning the defendant’s subjective intent in the
light most favorable to the State, “[d]efendant’s statements should not be read in
isolation and are more properly considered in context.”).
The context of Mr. Patton’s offer is of paramount importance—one can
reasonably infer that a motorist who knowingly slips a State Trooper a $100 bill with
his license and registration during a traffic stop for speeding is attempting to bribe
the officer notwithstanding the lack of an express statement of such intent. Similarly,
Mr. Patton’s call to his known accuser with an unsolicited offer of $1,000, prior to
trial and for no other discernable reason, is inherently suspect.
Other evidence solidifies the reasonable inference of intent to interfere,
namely: (1) his attempt to disguise his identity in calling Jane by using another
inmate’s telephone account, suggesting an improper motive; (2) his offer of $1,000
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immediately after Jane said “you’re not supposed to be talking to me,” showing that
the offer was made with full awareness that he was not to be in contact with Jane
and in direct contravention of those concerns; (3) Jane plainly sounds distressed on
the recoding once Mr. Patton identified himself, yet he continued to go forward with
his offer despite her obvious discomfort; (4) a second attempt to contact Jane after
she hung up on him, again demonstrating his disregard for prohibitions against
contacting Jane and the distress under which it placed her; (5) Mr. Patton’s admitted
past conduct of threatening and intimidating Jane in order to influence her behavior
for his benefit; and, (6) Jane’s own understanding of the conversation, derived from
her shared and involved history with Mr. Patton, that the offer was intended as a
bribe to prevent her from testifying.2
All of this evidence, coupled with a lack of other evidence indicating why Mr.
Patton would gratuitously, surreptitiously, and spontaneously offer his alleged victim
$1,000,3 is sufficient to support a reasonable inference that the offer was made with
2 Mr. Patton argues that Jane’s subjective understanding of his offer is irrelevant because, by
analogy to the crime of true threats, “a speaker’s subjective intent to threaten is the pivotal feature
separating constitutionally protected speech from constitutionally proscribable true threats.” Taylor,
379 N.C. at 605, 866 S.E.2d at 753. Mr. Patton overstates the relevance of that observation to his
argument, as Taylor likewise recognized Supreme Court precedent holding that, “in order to determine
whether a defendant’s particular statements contain a true threat, a court must consider . . . the
reaction of the listeners upon hearing the statement.” Id. at 600-01, 866 S.E.2d at 750 (citing Watts v.
United States, 394 U.S. 705, 708, 22 L. Ed. 2d 664, 667 (1969)).
3 On appeal, Mr. Patton points out his trial testimony that Jane falsely accused him of rape
because he refused to pay her $300 in exchange for sex. From there, he argues that this evidence
supports an inference that he offered Jane $1,000 to encourage her to “tell the truth” and rescind her
allegations against him. But this explanation of his conduct does not arise on the face of the evidence
introduced at trial; Mr. Patton never testified, either on direct or cross-examination, as to why he
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the intent to interfere with Jane’s testimony. The State introduced sufficient
competent evidence of the requisite intent and, by extension, the trial court did not
err in denying Mr. Patton’s motion to dismiss.
C. Jury Instructions
Mr. Patton next asserts that the trial court: (1) plainly erred in failing to
instruct the jury that it must find he threatened Jane to convict him of interfering
with a witness; (2) prejudicially erred in failing to instruct on the requirement that
his intent be to deter Jane from testifying specifically; (3) prejudicially erred in giving
the disjunctive instruction that included offering Jane $1,000; and (4) violated his
right to a unanimous jury verdict by giving said disjunctive instruction. On review
of the relevant facts and law, none of these arguments is convincing.
1. Standards of Review
We review preserved challenges to the trial court’s jury instructions de novo.
State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). Omission of a
necessary element from the jury instruction is reviewed under the harmless error
standard. State v. Bunch, 363 N.C. 841, 845, 689 S.E.2d 866, 869 (2010). Adequate
prejudice under this standard necessitates some “reasonable probability that [the]
outcome would have been different” absent the alleged error. Id. at 849, 689 S.E.2d
at 871. In undertaking such review, the instructions are to be viewed contextually
called Jane from jail. And, in any event, our standard of review requires us to draw all reasonable
inferences in the light most favorable to the State, not the defendant.
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within the entire jury charge. Id. at 847, 689 S.E.2d at 870. A challenged instruction
is sufficient “as long as [it] adequately explains each essential element of an offense.”
Id. at 846, 689 S.E.2d at 870 (citation omitted).
Unpreserved challenges to instructions given to the entire jury are reviewed
for plain error when distinctly asserted in the appellant’s brief. State v. May, 368
N.C. 112, 118, 772 S.E.2d 458, 462 (2015). “Plain error with respect to jury
instructions requires the error be so fundamental that (i) absent the error, the jury
probably would have reached a different verdict; or (ii) the error would constitute a
miscarriage of justice if not corrected.” State v. Pate, 187 N.C. App. 442, 445, 653
S.E.2d 212, 215 (2007) (citation omitted).
2. Instructions on Threat and Intent
Mr. Patton’s first asserted error in the jury instructions—that the trial court
plainly erred in failing to instruct the jury that any conviction for interfering with a
witness required a threat—is precluded by our earlier holding here that a defendant
may violate N.C. Gen. Stat. § 14-226 through bribery and without threats. His second
argument—that the trial court’s instruction failed to properly convey the requisite
intent to the jury—is likewise unavailing; the trial court gave the pattern instruction
for the offense, which this Court has previously held to be consistent with the statute.
Clagon, 279 N.C. App. at 434, 865 S.E.2d at 349. Further, the pattern instruction
given by the trial court makes clear, through context, that the jury was being asked
whether Mr. Patton acted with the intent to interfere in Jane’s testimony. The
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meaning of jury instructions is to be derived from the instructions’ totality:
It is well established in North Carolina that courts will not
find prejudicial error in jury instructions where, taken as
a whole, they present the law fairly and clearly to the jury.
Isolated expressions of the trial court, standing alone, will
not warrant reversal when the charge as a whole is correct.
State v. Graham, ___ N.C. App. ___, ___, 882 S.E.2d 719, 727 (2023) (cleaned up). It
is evident from the name of the charge as told to the jury, “interfering with a witness,”
and the elements of the charge as instructed—including “that the defendant
attempted to deter any person who was summoned as a witness in the defendant’s
case”—that the attempt to deter referenced in the instructions related to Jane’s
service as a testifying witness. See, e.g., Witness, Black’s Law Dictionary (11th ed.
2019) (“Someone who gives testimony under oath or affirmation”).
3. Instruction on $1,000
As with his first two arguments on alleged error in the jury instructions, we
see no merit in Mr. Patton’s assertion that the trial court’s mention of offering $1,000
in the elements of the charge erroneously permitted the jury to convict him of legal
conduct. To be sure, offering someone $1,000 is not, in the abstract, illegal. But such
conduct is unlawful if made with the intent to “prevent or deter, or attempt to prevent
or deter any person summoned or acting as [a] witness from attendance upon such
court.” N.C. Gen. Stat. § 14-226(a). When viewed in context, that is precisely what
the trial court instructed the jury:
If you find from the evidence beyond a reasonable doubt
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that on or about the alleged date a person was acting as a
witness in the defendant’s case in a court of this state, and
that the defendant . . . intentionally attempted to
deter . . . by calling the victim before his trial and stating he
had $1,000 for her, it would be your duty to return a verdict
of guilty.
The trial court thus informed the jury that it could convict Mr. Patton for offering
Jane $1,000 only if it amounted to an “intentional[] attempt[] to deter” her from
testifying, not for the mere act of offering her money itself. Mr. Patton has therefore
failed to show the asserted error in the trial court’s instruction.
4. Disjunctive Instruction and Unanimity
In his final argument, Mr. Patton contends that the disjunctive jury instruction
given by the trial court violated his right to a unanimous jury verdict, allowing jurors
to convict him for either bribery or the offer of $1,000. He presents this argument
under the fatal ambiguity identified in State v. Lyons:
[A] disjunctive instruction, which allows the jury to find a
defendant guilty if he commits either of two underlying
acts, either of which is in itself a separate offense, is fatally
ambiguous because it is impossible to determine whether
the jury unanimously found that the defendant committed
one particular offense.
330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991) (emphasis in original). But not all
disjunctive instructions run afoul of the constitutional requirement for unanimous
verdicts. Id. For example, in cases involving indecent liberties:
The risk of a nonunanimous verdict does not arise in cases
such as the one at bar because the statute proscribing
indecent liberties does not list, as elements of the offense,
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discrete criminal activities in the disjunctive . . . . [The
statute] proscribes simply “any immoral improper, or
indecent liberties.” Even if we assume that some jurors
found that one type of sexual conduct occurred and others
found that another transpired, the fact remains that the
jury as a whole would unanimously find that there
occurred sexual conduct within the ambit of “any immoral,
improper, or indecent liberties.” Such a finding would be
sufficient to establish the first element of the crime
charged.
State v. Hartness, 326 N.C. 561, 564-65, 391 S.E.2d 177, 179 (1990).
The statutory crime of interfering with a witness falls within the same category
as the indecent liberties statute discussed in Hartness. This Court has previously
recognized that the statute does not enumerate distinct criminal acts that
disjunctively establish discrete offenses; instead, intimidating, threatening, or
interfering with a witness are considered “undistinguished parts of a single offense
under N.C. Gen. Stat. § 14-226.” Clagon, 279 N.C. App. at 434, 865 S.E.2d at 349
(citing Neely, 4 N.C. App. at 476, 166 S.E.2d at 879). Further, there is no suggestion
from the evidence or verdict that Mr. Patton violated N.C. Gen. Stat. § 14-226 in any
manner other than attempting to deter Jane from testifying by offering her a $1,000
bribe over the phone. See Lyons, 330 N.C. at 307, 412 S.E.2d at 315 (observing that,
“[i]n some cases, an examination of the verdict, the charge, the initial instructions by
the trial judge to the jury, and the evidence may remove any ambiguity created by
the charge” (cleaned up)). Because the disjunctive instruction did not raise the
potential for a fatal ambiguity in the jury’s guilty verdict, and the evidence and
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STATE V. PATTON
Opinion of the Court
verdict eliminate any potential ambiguity, we hold that Mr. Patton has failed to
demonstrate error in the trial court’s disjunctive instruction.
III. CONCLUSION
For the foregoing reasons, we hold that the trial court had jurisdiction over the
charge of interfering with a witness and that Mr. Patton received a fair trial, free
from error.
NO ERROR.
Judges TYSON and ARROWOOD concur.
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