State v. Shannon

CALABRIA, Judge.

Michael Anthony Shannon (“defendant”) appeals from a judgment entered upon a jury verdict finding him guilty of intimidating a witness. We find no error.

In August 2010, the Swain County Department of Social Services (“DSS”) filed a juvenile petition against defendant and obtained custody of defendant’s minor daughter. As part of that case, defendant was referred to Appalachian Community Services (“ACS”) for counseling.

On 13 September 2011, defendant went to the ACS facility and loudly demanded information from the support staff in the lobby. Kelly Phelps (“Phelps”), who was both the director of the facility and defendant’s therapist, passed defendant while she was assisting another client. When she passed, defendant grabbed Phelps’s left forearm with enough force to stop her and stated, in a loud and aggravated tone, that he needed to speak with her. Defendant told Phelps that he wanted to talk about his inability to see his daughter as well as the content of a letter that Phelps had written to DSS regarding defendant’s treatment.

Phelps was able to convince defendant to follow her into a separate room away from the other individuals in the lobby. They subsequently began to discuss the letter. Defendant wanted Phelps to write a new letter stating that he did not require a certain treatment that was recommended. When Phelps informed defendant that she could not write a new letter, defendant became very loud. However, he calmed down when she subsequently offered to give him a copy of the letter she had sent to DSS. Phelps provided defendant with a copy of her DSS letter and made an appointment with defendant to further discuss his case. Defendant exited the ACS facility, and Phelps contacted law enforcement the next day to report the incident.

On 24 October 2011, defendant was indicted for intimidating a witness and breaking and/or entering. Beginning 18 October 2012, defendant was tried by a jury in Swain County Superior Court. At the close of the State’s evidence and at the close of all the evidence, defense counsel made a motion to dismiss the charge of witness intimidation. Both motions were denied. On 19 October 2012, the jury returned verdicts finding defendant guilty of intimidating a witness and not guilty of breaking and/or entering. The trial court sentenced defendant to a minimum of 6 months to a maximum of 8 months in the North Carolina Division of Adult Correction. That sentence was suspended, and defendant was placed on supervised probation for 36 months. Defendant appeals.

Defendant’s sole argument is that the trial court erred by denying his motion to dismiss. We disagree.

“ ‘Upon defendant’s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant’s being the perpetrator of such offense. If so, the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000)(quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994). “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).

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, he shall be guilty of a Class H felony.

N.C. Gen. Stat. § 14-226(a) (2009).¹

On appeal, defendant contends that his motion to dismiss should have been granted because (1) the State presented insufficient evidence that Phelps was “summoned or acting as a witness;” and (2) the State presented insufficient evidence that defendant attempted to prevent Phelps from attending court. However, at trial, defense counsel only raised the first argument, and consequently, this is the only argument properly before this Court. See State v. Euceda-Valle, 182 N.C. App. 268, 272, 641 S.E.2d 858, 862 (2007)(If, on appeal, a “defendant presents a different theory to support his motion to dismiss than that he presented at trial,” the argument is waived.). Since defendant has waived the second argument, the only issue to determine is whether the State presented substantial evidence that Phelps was acting as a witness pursuant to the statute.

Defendant argues that the State failed to prove that Phelps was acting as a witness because she had not been subpoenaed to testify in any hearing regarding defendant and there was no evidence presented that Phelps was actually going to be a witness against defendant. However, this Court has previously explained that it is unnecessary to demonstrate that an individual will definitely testify in an upcoming matter in order to qualify for protection as a witness under N.C. Gen. Stat. § 14-226(a).

In State v. Neely, a witness testified against the defendant during the defendant’s initial trial in the City Recorder’s Court of the City of Charlotte. 4 N.C. App. 475, 475, 166 S.E.2d 878, 878 (1969). After the defendant was convicted in that court and had appealed to the superior court for a trial de novo, the defendant threatened the witness. Id. Defendant was subsequently convicted of intimidating a witness and appealed to this Court. Id. at 476, 166 S.E.2d at 878. On appeal, the defendant argued that his conviction should have been dismissed because, when the threat was made, the witness had already completed his testimony in the first trial and was not under a subpoena to testify in the superior court trial. Id. This Court rejected the defendant’s argument, noting that the witness “was in the position of being a prospective witness” because, at the time of the threat, the defendant had already appealed for a trial de novo and the defendant was trying to prevent the witness from testifying in the superior court trial. Id. at 476, 166 S.E.2d at 879. The Court further explained that because “[t]he gist” of the offense of intimidating a witness is the obstruction of justice, “ ‘[i]t is immaterial... that the person procured to absent himself was not regularly summoned or legally bound to attend as a witness.’ ” Id. at 476-77,166 S.E.2d at 879 (quoting 39 Am. Jur. Obstructing Justice § 6).

In the instant case, defendant was referred to Phelps for therapy because DSS required counseling for him as a condition in his child custody case. The letter which provoked defendant’s actions on 13 September 2011 was provided to DSS by Phelps in order to assist DSS in resolving that case. As defendant himself acknowledged, the reason he went to ACS that day was because “[t]hat’s where I got all my counseling from that DSS wanted me to go through counseling for....”

Furthermore, Phelps testified that she had been called as a witness at least three or four times during her four years treating DSS clients as a therapist. She further testified that every time she wrote a letter to DSS, she was “opening [her]self up to have to testify” in court. In addition, Justin Greene (“Greene”), the attorney representing DSS in its case with defendant, testified that he had previously called Phelps as a witness in prior cases and that he had discussed with Phelps the possibility that she could be called as a witness in defendant’s case in early 2011. Taking this testimony in the light most favorable to the State, there was substantial evidence that Phelps was a prospective witness against defendant in his case with DSS.

The dissent contends that our interpretation of this Court’s language in Neely “erroneously expand[s] the scope of N.C. Gen. Stat. § 14-226 to encompass the facts of this case.” The dissent distinguishes this case from Neely by noting that there was arguably stronger evidence in that case that the prospective witness would be testifying against the defendant. However, nothing in Neely or the cases which have relied upon it suggests that the Neely Court was establishing a minimum standard to qualify as a “prospective witness.” Instead, Neely was simply establishing that “prospective witness” was the standard by which to determine whether an individual qualifies as being a “person summoned or acting as such witness” under N.C. Gen. Stat. § 14-226(a). Thus, while we agree with the dissent that, under the statute, there must be some likelihood that the threatened individual will act as a witness, the evidence to satisfy this requirement need not be, as the dissent suggests, the same or greater than the evidence presented in Neely. In this context, the differences between this case and Neely which are highlighted by the dissent relate only to the weight of the evidence presented by the State, rather than its legal sufficiency. •

Ultimately, when considered in the context of the plain language of Neely, the State presented sufficient evidence, when taken in the light most favorable to it, to establish that Phelps’s involvement in defendant’s custody case was substantial enough to qualify her as a “prospective witness” in that case. Defendant was only involved in therapy with Phelps as a result of his custody case, he confronted her regarding a letter which he knew she provided to DSS as part of that case, and the letter created a likelihood that she would have to testify regarding defendant. A reasonable juror could “accept [this evidence] as adequate to support [the] conclusion” that Phelps was a prospective witness. Smith, 300 N.C. at 78-79, 265 S.E.2d at 169. Accordingly, the trial court properly denied defendant’s motion to dismiss. This argument is overruled.

Defendant received a fair trial, free from error.

No error.

Judge STEPHENS concurs.

1 . Effective 1 December 2011, N.C. Gen. Stat. § 14-226(a) was amended to make this offense a Class G felony. See 2011 N.C. Sess. Law 190. Defendant’s offense occurred prior to the effective date of this amendment, and so we use the previous version of the statute.