State v. Glidden

• Decision Date: 12 August 1986
• Docket Number: No. 692PA85,692PA85
• Citation: 317 N.C. 557,346 S.E.2d 470
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Adam GLIDDEN.

Page 470

346 S.E.2d 470

317 N.C. 557

STATE of North Carolina v. Adam GLIDDEN.

No. 692PA85.

Supreme Court of North Carolina.

Aug. 12, 1986.

Lacy H. Thornburg, Atty. Gen. by G. Patrick Murphy, Asst. Atty. Gen., Raleigh, for the State.

Shipman & Lea by Gary K. Shipman and James W. Lea, III, Wilmington, for defendant-appellant.

MITCHELL, Justice.

The issue before this Court is whether the misdemeanor of transmitting an unsigned threatening letter in violation of N.C.G.S. § 14-394 is an offense which is made a felony by N.C.G.S. § 14-3(b). We conclude that the transmitting of such a letter does not fall within any of the classes of misdemeanors made felonious by N.C.G.S. § 14-3(b). Accordingly, we reverse the decision of the Court of Appeals.

After a presentment by the grand jury, the defendant was indicted for fourteen counts of feloniously, in secrecy and malice, transmitting unsigned threatening letters between the dates of 30 July 1982 and 18 February 1983. He was convicted by a jury of ten felony counts of transmitting unsigned threatening letters in violation of N.C.G.S. § 14-394 and N.C.G.S. § 14-3(b). The trial court sentenced him to a presumptive term of three years on each count, combined into two groups of concurrent sentences totaling an active sentence of six years.

The State prosecuted the defendant and obtained his felony convictions by relying on the combined effect of N.C.G.S. § 14-394 and N.C.G.S. § 14-3(b). The first statute, N.C.G.S. § 14-394, makes it unlawful to write and transmit an unsigned threatening letter. Standing alone, such an offense is a misdemeanor. State v. Glidden, 76 N.C.App. at 654, 334 S.E.2d at 101; N.C.G.S. § 14-1 (1981). By alleging that the offense was committed "in secrecy and malice," the State was able to elevate the offense and procure felony convictions under N.C.G.S. § 14-3(b). That statute provides:

If a misdemeanor offense as to which no specific punishment is prescribed be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender shall, except where the offense is a conspiracy to commit a misdemeanor, be guilty of a class H felony.

N.C.G.S. § 14-3(b) (1981).

The defendant appealed to the Court of Appeals contending that his equal protection and due process rights were violated when the State charged him with felonies by combining the two statutes. The defendant first contended that the elements of secrecy and malice are inherent in both statutes. The defendant contended that where the same act is punishable either as a felony or a misdemeanor, and the elements essential to a conviction of either are exactly the same, a conviction under the felony statute works a denial of both due process and equal protection. He argued that since the elements of both statutes are the same, the prosecutor has absolute discretion to decide whether a violation is a misdemeanor or a felony, resulting in an equal protection violation. He also argued that the combination of the two statutes results in an ambiguous and vague sentencing provision in violation of due process.

The Court of Appeals rejected each of the defendant's constitutional arguments. Relying on United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), it held that the State may elect to prosecute for either a felony offense under the combined statutes or the misdemeanor offense proscribed in N.C.G.S. § 14-394 alone.

Although we find error and reverse the Court of Appeals' decision in the present case, we do not do so on constitutional grounds. We do not address or decide the constitutional issues raised by the defendant. Instead, we hold that N.C.G.S. § 14-3(b) does not convert a violation of N.C.G.S. § 14-394 into a felony in any case.

The majority of cases considering N.C.G.S. § 14-3(b) have involved a solicitation or attempt to commit some specific criminal offense which the State contended was an "infamous offense" and, therefore, a felony under the terms of this statute. E.g., State v. Mann, 317 N.C. 164, 345 S.E.2d 365 (1986) (solicitation to commit common law robbery is infamous crime); State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982) (attempted receipt of stolen property is not infamous); State v. Harward, 264 N.C. 746, 142 S.E.2d 691 (1965); State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964) (attempt to commit armed robbery is infamous offense); State v. McNeely, 244 N.C. 737, 94 S.E.2d 853 (1956) (attempt to commit common law robbery is infamous offense); State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949) (attempt to commit first degree burglary is infamous offense); State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938) (attempt to commit crime against nature is infamous offense). See State v. Page, 32 N.C.App. 478, 232 S.E.2d 460, disc. rev. denied, 292 N.C. 643, 235 S.E.2d 64 (1977) (attempt to obtain property by false pretenses is necessarily done with intent to deceive). See generally Note, Criminal Law--Infamous Offenses--Attempted Burglary Punishable as a Felony, 28 N.C.L.Rev. 103 (1949) (historical discussion).

In determining whether an offense is "infamous" and shall be punished as a felony for that reason under N.C.G.S. § 14-3(b), this Court has consistently looked to the nature of the offense. Id. In the most recent case considering that issue, we stated that: "A crime is 'infamous' within the meaning of the statute if it is an act of depravity, involves moral turpitude, and reveals a heart devoid of social duty and a mind fatally bent on mischief...." State v. Mann, 317 N.C. at ---, 345 S.E.2d at 369. The "infamous" nature of the offense was the determinative consideration rather than the particular circumstances of the individual case. It suffices to say that we conclude that the crime of transmitting an unsigned threatening letter is not such an act of depravity as to be an "infamous" offense made felonious by N.C.G.S. § 14-3(b).

We turn then to consider whether the offense of transmitting an unsigned threatening letter falls within the other classes of misdemeanors made felonious by N.C.G.S. § 14-3(b). We conclude that it does not.

In State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982), this Court considered whether the attempted receipt of stolen property fell within one of the three classes of misdemeanors made felonies by N.C.G.S. § 14-3(b). We first determined that the offense of attempting to receive stolen property is not of such a degrading nature as to be classified as an "infamous" crime under N.C.G.S. § 14-3(b). 307 N.C. at 9, 296 S.E.2d at 439. We next considered whether the offense could fall within the remaining two classes. In construing the meaning of the words "done in secrecy and malice" and "with deceit and intent to defraud", as used in the statute, we adopted that part of the dissent of Justice Ervin in State v. Surles, 230 N.C. 272, 284, 52 S.E.2d 880, 888 (1949), where he wrote:

When the Legislature used the words "done in secrecy and malice, or with deceit and intent to defraud," to describe the second and third classes of aggravated offenses included in the statute now codified as G.S. 14-3, its manifest purpose was to describe offenses in which either secrecy and malice, or the employment of deceit with intent to defraud are elements necessary to their criminality as defined by law.

307 N.C. at 9, 296 S.E.2d at 438-39. We then held that the offense of attempted receipt of stolen property did not include secrecy, malice, deceit or intent to defraud as necessary elements of the crime.

In determining whether a misdemeanor is an offense "done in secrecy and malice," then, the courts must apply a definitional test and determine whether both "secrecy and malice" are necessary or inherent elements of the offense. This approach is consistent with the general rule that criminal statutes are to be strictly construed against the State. State v. Hageman, 307 N.C. at 9, 296 S.E.2d at 438; State v. Ross, 272 N.C. 67, 157 S.E.2d 712 (1967). Further, this approach is mandated by Hageman.

Having set forth the proper test, we conclude that the offense of transmitting unsigned threatening letters does not fall within that class of offenses which are by definition "done in secrecy and malice" and, therefore, felonies. Secrecy is not an element inherent in the offense. Secrecy is defined as "the habit or practice of keeping secrets or maintaining privacy or concealment." Webster's Ninth Collegiate Dictionary, 1061 (1984). Although N.C.G.S. § 14-394 requires that the threatening letters be unsigned, it does not require that the sender have maintained privacy or concealed his identity in order to be convicted. The sender could transmit an unsigned threatening letter while at the same time exposing his identity. The threatening letter could contain clues allowing for the unmistakable identification of the sender, such as personal facts and recognizable handwriting. Likewise, the sender could hand deliver the unsigned letter thereby destroying any possibility of anonymity and secrecy. The sender could easily violate N.C.G.S. § 14-394 by transmitting an unsigned threatening letter without maintaining secrecy. Therefore, we conclude that the offense of transmitting unsigned threatening letters does not by definition include the elements of secrecy and malice.

For similar reasons, the offense of transmitting unsigned threatening letters does not fall within the third class of misdemeanors made felonious by N.C.G.S. § 14-3(b). It is entirely possible for such an offense to be committed without "deceit and intent to defraud." Therefore, such offenses are not by definition done "with deceit and intent to defraud" and are not elevated to the level of felonies on that basis.

A prosecutor has neither the discretion nor the authority, under either N.C.G.S. § 14-394 or N.C.G.S. § 14-3(b), to charge a person with feloniously transmitting unsigned threatening letters. The trial court erred in the present case by entering...