State v. Greenspan

• Decision Date: 17 January 1989
• Docket Number: No. 8815SC282,8815SC282
• Citation: 374 S.E.2d 884,92 N.C.App. 563
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Peter GREENSPAN.

Page 884

374 S.E.2d 884

92 N.C.App. 563

STATE of North Carolina v. Peter GREENSPAN.

No. 8815SC282.

Court of Appeals of North Carolina.

Jan. 17, 1989.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Doris J. Holton, Raleigh, for State.

Purser, Cheshire, Parker, Hughes & Dodd by Joseph B. Cheshire V, Raleigh, for defendant-appellant.

PARKER, Judge.

Defendant was tried and convicted of extortion under G.S. 14-118.4.

Defendant brings forward three assignments of error. Defendant first contends that the trial court erred in denying his motion to dismiss for insufficient evidence. Defendant next contends that the trial court erred in portions of its charge to the jury. Defendant's final argument is that the trial court erred in failing to find certain statutory factors in mitigation of punishment.

The State's evidence tended to show the following. In late September or early October of 1986, defendant contacted the Chapel Hill Police Department to complain of harassing telephone calls. Defendant told the police that he had contacted the telephone company and the company traced five calls to a Chapel Hill address through the use of a pen register. Ali Mobarakeh, a dental student at the University of North Carolina, resided at that address. Defendant previously had contacted the sheriff's office in Chatham County, where defendant resided, and the Chatham County authorities told defendant to take the matter to the Chapel Hill Police.

The police took no immediate action, but defendant continued to report that he was receiving harassing calls. On 14 January 1987, a meeting was arranged between defendant, Ali Mobarakeh, Mobarakeh's brother, and Lieutenant Arthur Summey of the Chapel Hill Police Department. The meeting was held to see if defendant could identify Mobarakeh's voice. Defendant identified Mobarakeh as the caller, and told Lieutenant Summey he wanted to wait overnight before signing an arrest warrant.

The next day, defendant called Mobarakeh and indicated that he would not press charges if Mobarakeh would offer him money. Mobarakeh refused, and he recorded defendant's call on his answering machine. Mobarakeh took the recording to Lieutenant Summey. Defendant had told Mobarakeh that he would call back at 11:00 P.M., and Summey instructed Mobarakeh to refuse any offers and to record that call as well. Mobarakeh returned the next morning, 16 January 1987, and gave Summey a recording of the second call. Later that morning, defendant signed three warrants for Mobarakeh's arrest.

The recordings of defendant's calls and transcripts of the calls were offered into evidence by the State. Defendant testified that Mobarakeh had initially offered a cash settlement but that this portion of the conversation had not been recorded. Defendant also testified that he had believed that he could settle the matter in the manner of a civil suit.

The jury found defendant to be guilty of extortion. The trial court made findings of factors in aggravation and mitigation of punishment and found that the factors in aggravation outweighed the factors in mitigation. From a judgment imposing a six-year prison term, defendant appeals.

Defendant first argues that the trial court erred in denying his motion to dismiss the charge against him at the close of all the evidence. The crime of extortion is defined by statute:

Any person who threatens or communicates a threat or threats to another with the intention thereby wrongfully to obtain anything of value or any acquittance, advantage, or immunity is guilty of extortion and such person shall be punished as a Class H felon.

G.S. 14-118.4. Defendant contends that the State failed to present sufficient evidence that defendant (i) communicated a threat and (ii) did so with the intent to wrongfully obtain something of value. To survive defendant's motion to dismiss, the State had to present substantial evidence of each element of the offense charged. State v. Green, 310 N.C. 466, 467, 312 S.E.2d 434, 435 (1984).

Defendant does not contend that the State's evidence failed to show that he threatened to initiate criminal proceedings against Mobarakeh or offered to refrain from initiating those proceedings in exchange for cash. Rather, defendant contends that these actions do not constitute the elements of a threat and wrongful intent within the meaning of G.S. 14-118.4. Defendant argues that threatening an individual with criminal prosecution is not a threat within the meaning of the statute and, even if it is, such a threat is not made with wrongful intent if the maker of the threat reasonably believes that the threatened party is guilty. Defendant also argues that there is no wrongful intent where the maker of the threat reasonably believes that he is entitled to the property he seeks to obtain.

We first consider defendant's argument concerning the element of communication of a threat. Our courts have not previously defined the elements of extortion under G.S. 14-118.4. Defendant relies on Harris v. NCNB, 85 N.C.App. 669, 355 S.E.2d 838 (1987). In Harris, this Court cited G.S. 14-118.4 in holding that an allegation of a threat to file a civil action if not paid a claimed amount does not state a claim for relief in tort. Id. at 675-76, 355 S.E.2d at 843. Harris is not relevant to the present case, which is a criminal action and involves a threat of criminal prosecution. Research discloses only one case construing the term "threat" as used in G.S. 14-118.4. In Tryco Trucking Co. v. Belk Stores Services, 634 F.Supp. 1327 (W.D.N.C.1986), the court held that a threat of economic harm constituted a threat under the statute. Id. at 1333-34.

The common-law crime of extortion did not encompass threats to accuse the victim of a crime, but almost all jurisdictions have included such threats in statutory definitions of extortion. Note, A Rationale of the Law of Aggravated Theft, 54 Colum.L.Rev. 84, 94 (1954); 2 W. LaFave & A. Scott, Substantive Criminal Law § 8.12 at 461 (1986). The definition of extortion in G.S. 14-118.4 covers any threat made with the intention to wrongfully obtain "anything of value or any acquittance, advantage, or immunity." Defendant's action in making the telephone call in which he offered to refrain from pressing criminal charges in exchange for money amounted to threatening criminal prosecution and clearly comes within the purview of the broad language, "a threat."

Since defendant's challenge to the denial of his motion to dismiss raises the question of a fatal variance between the proof and the indictment, State v. Cooper, 275 N.C. 283, 286-87, 167 S.E.2d 266, 268 (1969), we note that defendant's conduct is also punishable as a misdemeanor under G.S. 14-118, the blackmail statute. This statute specifically proscribes accusing or threatening to accuse a person of a crime punishable by imprisonment with the intent to "extort or gain" from that person any chattel, money or valuable security. The offense of blackmailing under G.S. 14-118 has been codified in substantially the same form since 1854. Revised Code Ch. 34, § 110 (1854). General Statute 14-118.4 was enacted in 1973. 1973 N.C.Sess.Laws Ch. 1032. Although repeals by implication are not favored, the following rules govern construction of criminal statutes:

[W]hen a new penal statute practically covers the whole subject of a prior penal act, and embraces new provisions, plainly and manifestly showing that it was the legislative intent for the later act to supersede the prior act, and to be a substitute therefor, comprising the sole and complete system of legislation on the subject, the later act will operate as a repeal of the prior act.

State v. Lance, 244 N.C. 455, 457, 94 S.E.2d 335, 337 (1956). A later penal statute repeals a former one when it covers the same acts but fixes a different penalty or substantially redefines the offense. United States v. Yuginovich, 256 U.S. 450, 463, 41 S.Ct. 551, 554, 65 L.Ed. 1043, 1047 (1921); 1A N. Singer, Sutherland Statutory Construction § 23.26 (4th ed. 1985).

Applying the above rules of construction to the circumstances of the present case, we find that G.S. 14-118.4 supersedes G.S. 14-118. Accordingly, we hold that defendant was indicted and tried under the proper statute.

We next consider defendant's arguments concerning the element of wrongful intent. Defendant contends that the evidence shows that defendant lacked the requisite intent because he reasonably believed that (i) the victim was guilty of the crime upon which defendant's threat was based and (ii) he was entitled to the money he sought to obtain as compensation for the discomfort resulting from the harassing phone calls. Defendant's argument is premised on the language of G.S. 14-118.4 which requires that the threat be made "with the intention wrongfully to obtain anything of value...." Defendant contends that his intent was not "wrongful" within the meaning of the statute. We disagree.

Defendant's belief in the victim's guilt is not relevant. The wrongful intent required by the statute refers to the obtaining of property and not to the threat itself. Even if the victim were guilty, this would not entitle defendant to demand money in exchange for refraining from initiating criminal proceedings. The majority of jurisdictions that have considered the matter have held that the victim's guilt of the crime of which he is accused is no defense to a charge of extortion. 2 W. LaFave & A. Scott, Substantive Criminal Law § 8.12 at 461 (1986).

Defendant also argues that, because he believed he was entitled to the money he sought to obtain, he did not communicate a threat with the intent to "wrongfully" obtain the property. There is a split of authority on the question of whether a defendant's reasonable belief that he is entitled to the property he seeks to obtain constitutes a defense to a charge of extortion. See Annotation, Extortion In Collecting Claim, 135 A.L.R. 728 (1941). Those states that have...