State v. Mylett

Decision Date04 December 2018
Docket NumberNo. COA17-480,COA17-480
Citation822 S.E.2d 518,262 N.C.App. 661
CourtNorth Carolina Court of Appeals
Parties STATE of North Carolina v. Patrick MYLETT

Attorney General Joshua H. Stein, by Solicitor General Matthew W. Sawchak, Deputy Solicitor General James W. Doggett, and Deputy Solicitor General Ryan Park, for the State.

Goodman Carr, PLLC, Charlotte, by Rob Heroy, for defendant-appellant.


Patrick Mylett ("defendant") appeals from the trial court's judgment entered upon a jury verdict finding him guilty of conspiracy to commit harassment of a juror pursuant to N.C. Gen. Stat. § 14-225.2(a)(2) (2017).

After careful review, we conclude that defendant received a fair trial, free from error.

I. Background

In August 2015, defendant and his twin brother ("Dan") were enrolled as students at Appalachian State University in Boone, North Carolina. On 29 August 2015, the brothers were involved in a fight at a fraternity party. Dan was subsequently charged with assault on a government official and intoxicated and disruptive behavior. On 31 March 2016, a Watauga County Superior Court jury returned a verdict finding Dan guilty of assault on a government official. After sentencing, defendant, Dan, and Dan's girlfriend ("Kathryn") loudly confronted six jurors about the verdict as they exited the courtroom and retrieved their belongings from the jury room. One juror reported the incident to the courthouse law enforcement officer, while another juror discussed the matter with the assistant district attorney.

On 19 April 2016, defendant was arrested and charged with six counts of harassment of a juror and one count of conspiracy to commit harassment of a juror. On 18 July 2016, the Watauga County grand jury returned bills of indictment formally charging defendant with these offenses. Dan and Kathryn were also separately charged and tried for the same offenses.

Defendant's trial commenced during the 30 January 2017 criminal session of Watauga County Superior Court with a hearing on several pretrial motions. Defendant filed pretrial motions to dismiss all charges as unconstitutional, arguing that the juror-harassment statute, N.C. Gen. Stat. § 14-225.2(a)(2), (1) violates the First Amendment, both on its face and as applied to his conduct; and (2) is unconstitutionally vague. Defendant also filed a pretrial motion in limine , pursuant to N.C. Rules of Evidence 404(b) and 802, requesting the trial court to order the State's "witnesses not to make any references to a fight or fights in which [defendant] or [Dan] participated." The trial court denied each of defendant's motions, but stated that the ruling on his motion in limine was "subject to being reopened based on the form of the question that is asked" at trial.

At trial, all six jurors testified as witnesses for the State. Following the State's presentation of evidence, defendant renewed his pretrial motions for dismissal and further moved to dismiss all charges for insufficient evidence. After the trial court denied his motions, defendant presented evidence, including his own testimony, and subsequently renewed his motions for dismissal at the close of all evidence.

At the charge conference, defendant requested that the trial court provide the jury with a definition of "intimidate," which is not defined by statute. See N.C. Gen. Stat. § 14-225.2. The State opposed defendant's motion, along with his proposed definitions. The trial court denied defendant's motion, and the jury was not provided with a definition of "intimidate."

On 2 February 2017, the jury returned verdicts finding defendant not guilty of six counts of juror harassment, but guilty of one count of conspiracy to commit juror harassment. The trial court sentenced defendant to 45 days in the custody of the Watauga County Sheriff, suspended his active sentence, and placed defendant on 18 months of supervised probation. The trial court also ordered defendant to serve 60 hours of community service, enroll in anger management, and obtain 20 hours of weekly employment.

Defendant appeals.

II. Constitutionality

On appeal, defendant argues that the trial court erred by denying his motions to dismiss on the basis of the constitutionality of the juror-harassment statute. Specifically, he asserts that N.C. Gen. Stat. § 14-225.2(a)(2) violates his First Amendment right to free speech and expression; and (2) is void for vagueness. We disagree.

A. Standard of Review

Constitutional challenges to statutes are reviewed de novo on appeal. N.C. Ass'n of Educators, Inc. v. State , 368 N.C. 777, 786, 786 S.E.2d 255, 262 (2016). Yet, even under de novo review, we begin with a presumption of validity. Id. "This Court presumes that statutes passed by the General Assembly are constitutional, and duly passed acts will not be struck unless found unconstitutional beyond a reasonable doubt[.]" Id. (citations omitted); see also Wayne Cty. Citizens Ass'n for Better Tax Control v. Wayne Cty. Bd. of Comm'rs , 328 N.C. 24, 29, 399 S.E.2d 311, 315 (1991) ("Where a statute is susceptible of two interpretations, one of which is constitutional and the other not, the courts will adopt the former and reject the latter.").

B. Implication of the First Amendment

In First Amendment challenges, the initial determination our Court must make is whether the statute in question— N.C. Gen. Stat. § 14-225.2(a)(2) in the instant case—triggers First Amendment protections. See State v. Bishop , 368 N.C. 869, 872, 787 S.E.2d 814, 817 (2016).

To do so, we must determine whether N.C. Gen. Stat. § 14-225.2(a)(2) "restricts protected speech or expressive conduct, or whether the statute affects only nonexpressive conduct." Id. at 872, 787 S.E.2d at 817. While a seemingly simple task, this inquiry is not always straightforward or clear cut. The United States Supreme Court has long sought to balance the protection of expressive conduct—particularly when such conduct is "inherently" expressive—with the exclusion of otherwise proscribable criminal conduct that just so happens to involve written or spoken words. Compare Rumsfeld v. Forum for Acad. & Inst'l Rights, Inc. , 547 U.S. 47, 66, 126 S.Ct. 1297, 1310, 164 L.Ed.2d 156, 175 (2006) (extending First Amendment protection "only to conduct that is inherently expressive"), with United States v. Alvarez , 567 U.S. 709, 717, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574, 587 (2012) (plurality opinion) (noting that "speech integral to criminal conduct" remains a category of historically unprotected speech).

Recently, in Bishop , the North Carolina Supreme Court examined the First Amendment implications arising from our cyberbullying statute. 368 N.C. 869, 787 S.E.2d 814. The statute in question, N.C. Gen. Stat. § 14-458.1(a)(1), prohibited individuals from "[p]ost[ing] or encourage[ing] others to post on the Internet [any] private, personal, or sexual information pertaining to a minor" "[w]ith the intent to intimidate or torment a minor." N.C. Gen. Stat. § 14-458.1(a)(1)(d) (2015). The Court, in holding the statute applied to expressive conduct and therefore implicated the First Amendment, reasoned the "statute outlawed posting particular subject matter, on the internet, with certain intent[,]" and consequently "appl[ied] to speech and not solely, or even predominantly, to nonexpressive conduct." Bishop , 368 N.C. at 873, 787 S.E.2d at 817. The Court ultimately held the statute unconstitutional on the basis of its violation of "the First Amendment's guarantee of the freedom of speech." Id. at 880, 787 S.E.2d at 822.

In the instant case, N.C. Gen. Stat. § 14-225.2(a)(2) applies to nonexpressive conduct and does not implicate the First Amendment. N.C. Gen. Stat. § 14-225.2 provides, in part:

(a) A person is guilty of harassment of a juror if he:
(1) With intent to influence the official action of another as a juror, harasses, intimidates, or communicates with the juror or his spouse; or
(2) As a result of the prior official action of another as a juror in a grand jury proceeding or trial, threatens in any manner or in any place, or intimidates the former juror or his spouse.

N.C. Gen. Stat. § 14-225.2(a) (emphasis added). When read in context, it is apparent this language applies to a defendant's conduct—threats and intimidations—directed at a particular class of persons—jurors—irrespective of the content. Unlike the language found in Bishop , which was a content-based restriction on internet posts, the language in this statute amounts to a restriction on conduct that is otherwise proscribable as criminal. See, e.g. , State v. Camp , 59 N.C. App. 38, 42-43, 295 S.E.2d 766, 768-69 (1982) (holding a statute barring the use of a telephone to harass another individual does not implicate the First Amendment because the statute proscribed conduct not speech); see also State v. Mazur , ––– N.C. App. ––––, 817 S.E.2d 919 (2018) (unpublished) (upholding the constitutionality of N.C. Gen. Stat. § 14-277.3A —North Carolina's stalking statute—because the statute did not implicate the First Amendment). Accordingly, we hold N.C. Gen. Stat. § 14-225.2(a)(2) proscribes conduct, not speech, and therefore does not implicate the First Amendment. We therefore overrule Defendant's argument.

C. Content-Neutral Restriction

However, even assuming arguendo N.C. Gen. Stat. § 14-225.2(a)(2) does implicate the First Amendment, the statute satisfies constitutional requisites.

The second threshold inquiry when examining the First Amendment validity of a statute is whether the portion of the statute limiting speech is "content based or content neutral." Bishop , 368 N.C. at 874, 787 S.E.2d at 818. The outcome of this determination governs the appropriate standard of scrutiny we must apply. If a statute is found to be content based, we apply strict scrutiny under which the restrictions "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Reed v. Town of Gilbert , –––...

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4 cases
  • State v. Taylor
    • United States
    • North Carolina Court of Appeals
    • 17 Marzo 2020
    ...689, 703 (2019) (mentioning that "true threats" are one of the recognized "unprotected" categories of speech), State v. Mylett , 262 N.C.App. 661, 822 S.E.2d 518 (2018) (currently before our Supreme Court on appeal of right due to dissent),4 and State v. Benham , 222 N.C. App. 635, 731 S.E.......
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  • United States v. Williams
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    ... ...          Williams ... also contended that North Carolina conspiracy did not require ... proof of an overt act. See State v. Mylett, 822 ... S.E.2d 518, 527 (N.C. Ct. App. 2018) ("[N]o overt act ... is necessary to complete the crime of conspiracy." ... ...

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