Heard in the Court of Appeals May 6, 2015.
[Copyrighted Material Omitted]
Alamance County, No. 12 CRS 50870.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender James R. Grant, for defendant-appellant.
TYSON, Judge. Judges GEER and STROUD concur.
Appeal by defendant from judgment entered 5 February
2014 by Judge G. Wayne Abernathy in Alamance County Superior Court.
Robert Bishop (" Defendant" ) appeals from judgment entered after a jury convicted him of one count of cyber-bullying. We find no error in Defendant's conviction or the judgment entered thereon.
I. Factual Background
Dillion Price (" Dillion" ) was a sophomore at Southern Alamance High School in Alamance County, North Carolina during the 2011-2012 school year. In September 2011, Dillion's classmates began posting negative comments and pictures of him on his Facebook page. Dillion received notification on his cell phone after any Facebook comment was posted about him.
Defendant, one of Dillion's classmates, posted several comments about Dillion, which included posts calling him " homophobic" and " homosexual," and that he was " slamming someone on the open forum that is the internet." Defendant also stated " he never got the chance to slap [Dillion] down before Christmas break." Defendant made additional comments rife with vulgarity, discussed further in the State's evidence, below.
Late one night in December 2011, Dillion's mother found him crying, punching his pillow, beating himself in the head, and throwing things in his room. Dillion's mother confiscated his cell phone as punishment for being awake so late on a school night. After looking at his phone, Dillion's mother discovered the " derogatory comments," which had upset Dillion, and contacted local law enforcement. Dillion's mother brought several print-outs of the Facebook conversations to Alamance County Sheriff's Detective David Sykes (" Detective Sykes" ).
Detective Sykes began an investigation and used undercover Facebook profiles to search for posts and comments in which Dillion was mentioned. Detective Sykes testified " [w]henever [he] found anything that appeared to have been . . . cyber-bullying [he] took a screen shot of it."
Detective Sykes compiled a list of names during his investigation. He went to Southern Alamance High School to interview the students on his list on 7 February 2012. Defendant was one of the students he interviewed. Defendant admitted he recognized some of the Facebook comments as his posts.
On 9 February 2012, Defendant was arrested and charged with one count of cyber-bullying under N.C. Gen. Stat. § 14-458.1(a)(1)(d). The warrant alleged Defendant " unlawfully and willfully did use a computer network to, with the intent to intimidate and torment Dillion Price, a minor, post on the Internet private, personal and sexual information pertaining to the above named minor, to wit, commenting on Facebook about his sexual orientation and his intelligence."
Following a trial in Alamance County District Court, Defendant appealed to the superior court for a trial de novo. A jury trial was held in Alamance County Superior Court on 3 February 2014. Defendant exercised his constitutional right not to testify on his own behalf.
A. State's Evidence
The State introduced and published to the jury " screen shots" of three Facebook posts in which Defendant had commented. Detective Sykes also read those posts into evidence at trial. Each screen shot is discussed in turn.
The State's Exhibit 2 consisted of a screen shot Facebook post of a text message Dillion had accidentally sent to another classmate. Over thirty comments were added by various individuals in reference to the original post. Defendant added the following comments: (1) " This is excessively homoerotic in nature. Exquisite specimen; " (2) " Anyone who would be so defensive over Dillion can't be too intelligent; " (3) " And you are equally pathetic for taking the internet so seriously; " and, (4) " There isn't a fight. We're slamming someone on the open forum that is the internet."
The State's Exhibit 3 contained another screen shot Facebook post of a text message exchanged between Dillion and a classmate. Several students commented they hated Dillion, and one asked, " Can we just kick his ass already?" Defendant commented, " I never got to slap him down before Christmas Break," followed by a " sad face" emotion icon. Another student requested for someone to " tag" Dillion, in order for him to be notified of these posts. Defendant replied, " I'll add him."
The State's Exhibit 4 was a third screen shot Facebook post of text messages exchanged between Dillion and a classmate. The original text message from the classmate included an altered picture of Dillion and his dog. Several students posted vulgar and derogatory comments in response, which insulted Dillion. Defendant posted comments, including: " I heard that his anus was permanently stressed from having awkwardly shaped penises in it" and stated that Dillion's genitals were " probably a triangle."
The jury's verdict found Defendant guilty of one count of cyber-bullying. The trial court imposed a suspended sentence of 30 days in the custody of the Alamance County Sheriff and placed Defendant on supervised probation for a period of 48 months. Defendant gave notice of appeal in open court.
Defendant argues: (1) N.C. Gen. Stat. § 14-458.1(a)(1)(d) is an unconstitutionally overbroad criminalization of protected speech on its face; and, (2) N.C. Gen. Stat. § 14-458.1(a)(1)(d) is unconstitutionally vague on its face. He asserts the statute fails to provide adequate notice of the prohibited speech, lends itself to arbitrary enforcement, and chills protected speech. Defendant also argues N.C. Gen. Stat. § 14-458.1(a)(1)(d) is unconstitutionally vague as applied to him and asserts the statute failed to provide him with adequate notice that his speech was criminal.
Defendant additionally argues the trial court erred by: (1) denying his motion to dismiss for insufficient evidence; (2) permitting Detective Sykes to testify he took a screen shot whenever he came across what appeared to him to be an instance of cyber-bullying; and, (3) admitting into evidence Defendant's statements about Christianity.
This case of first impression requires us to determine whether N.C. Gen. Stat. § 14-458.1(a)(1)(d) criminalizes protected speech under the First Amendment. Defendant argues N.C. Gen. Stat. § 14-458.1(a)(1)(d) is an unconstitutionally overbroad content-based criminalization of protected speech. Defendant asserts the statute criminalizes both the narrow categories of speech historically denied First Amendment protection, as well as a broad array of constitutionally protected speech. We disagree.
1. Standard of Review
This Court reviews the constitutionality of a statute de novo. State v. Whitaker, 201 N.C.App. 190, 192, 689 S.E.2d 395, 396 (2009), aff'd, 364 N.C. 404, 700 S.E.2d 215 (2010). However, " [w]hen examining the constitutional propriety of legislation, we presume that the statutes are constitutional, and resolve all doubts in favor of their constitutionality." State v. Mello, 200 N.C.App. 561, 564, 684 S.E.2d 477, 479 (2009) (citation and internal quotation marks omitted), aff'd, 364 N.C. 421, 700 S.E.2d 224 (2010).
If a statute contains both constitutional and unconstitutional provisions, we sever the unconstitutional provision and uphold the constitutional provisions to the extent possible. Fulton Corp. v. Faulkner, 345 N.C. 419, 422, 481 S.E.2d 8, 10 (1997) (citations omitted). It is well-settled that " [t]he constitutional right of freedom of speech does not extend its immunity to conduct which violates a valid criminal statute. Neither does the protection of the First Amendment extend to every use and abuse of the spoken and written word." State v. Leigh, 278 N.C. 243, 250, 179 S.E.2d 708, 712 (1971) (citations omitted).
The First Amendment to the United States Constitution prohibits governmental restrictions of speech which are based upon its subject-matter or content. U.S. Const. amend. I ( " Congress shall make no law . . . abridging the freedom of speech" ); Ashcroft v. ACLU, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771, 780 (2002).
An individual may challenge a statute as overbroad on First Amendment grounds, even if the statute is constitutionally applied to him. United States v. Stevens, 559 U.S. 460, 472-73, 130 S.Ct. 1577, 176 L.Ed.2d 435, 446-47 (2010). The " overbreadth doctrine" allows litigants to challenge a statute " not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830, 840 (1973).
A law is impermissibly overbroad " on its face if it sweeps within its ambit not solely activity that is subject to governmental control, but also includes within its prohibition the practice of a protected constitutional right." State v. Hines, 122 N.C.App. 545, 552, 471 S.E.2d 109, 114 (1996) (citations and internal quotation marks ...