State v. Dale

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-105

Filed: 16 February 2016

Orange County, No. 12 CRS 52658

STATE OF NORTH CAROLINA

v.

WENDY M. DALE

Appeal by defendant from judgment entered 10 July 2014 by Judge Robert F.

Johnson in Orange County Superior Court. Heard in the Court of Appeals

13 August 2015.

Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.

Wendy Dale, pro se.

McCULLOUGH, Judge.

Wendy Dale (“defendant”) appeals from a judgment entered upon a jury verdict

finding her guilty of disorderly conduct in a public facility in violation of N.C. Gen.

Stat. § 14-132(a)(1), for which she received a suspended sentence of 30 days and 12

months of supervised probation along with court costs and a community service fee.

Defendant raises several issues on appeal including lack of subject matter jurisdiction

due to a defective indictment, instructional error, double jeopardy, and, by a motion

for appropriate relief (MAR) filed during the pendency of this appeal, facial and as

applied challenges to the constitutionality of N.C. Gen. Stat. § 14-132(a)(1). After a  STATE V. DALE

Opinion of the Court

careful consideration of each of defendant’s arguments, we find no error and uphold

her conviction.

I. Procedural Background

Defendant was tried before a jury and convicted of disorderly conduct in a

public building on 10 July 2015. Although defendant was represented by counsel at

trial, she has pursued her appeal and post-conviction proceedings pro se.1

Defendant timely appealed from the judgment entered on her conviction to this

Court on 24 July 2014. On that same date, defendant filed her first motion for

appropriate relief (the “Initial MAR”) with the trial court pursuant to N.C. Gen. Stat.

§ 15A-1414. The Initial MAR alleged that defendant was arrested without probable

cause and convicted without sufficient evidence of the offense charged, disorderly

conduct in a public building. The Initial MAR also alleged that the trial court erred

in refusing to instruct the jurors on defendant’s First Amendment right to free speech.

1 It appears that defendant based her purported notice of appeal on a previous version of N.C. Gen. Stat. § 15A-1448(a)(4), which, until repealed in 1987, provided: “If there has been no ruling by the trial judge on a motion for appropriate relief within 10 days after motion for such relief has been made, the motion shall be deemed denied.” See 1997 N.C. Sess. Laws Ch. 1147 S. 29, repealed by 1987 N.C. Sess. Laws Ch. 624. Since it was repealed, that provision is of no legal effect. We note that defendant, representing herself pro se in her post-conviction filings with the trial court and on appeal, also has violated Rule 28 of the North Carolina Rules of Appellate Procedure by submitting her brief in single-spaced, rather than double-spaced, text. See N.C. R. App. P. 28(j)(2)(A). Although the Rules of Appellate Procedure apply equally to all parties, “whether acting pro se or being represented by all of the five largest law firms in the state,” Bledsoe v. County of Wilkes, 135 N.C. App. 124, 125, 519 S.E.2d 316, 317 (1999), this nonjurisdictional defect is not “gross” or “substantial” enough to warrant sanctions. See Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transport Co., Inc., 362 N.C. 191, 199, 657 S.E.2d 361, 366 (2008).

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Opinion of the Court

Based on an erroneous calculation of the filing deadline, on 11 September 2014,

the trial court determined the Initial MAR was untimely and entered an order

denying the Initial MAR without a hearing on the merits (the “First Order”). On

26 September 2014, defendant filed a motion to vacate the First Order. The trial

court entered an order vacating the First Order on 19 November 2014.

On 3 October 2014, while defendant’s motion to vacate the First Order was

pending before the trial court, defendant filed an amended motion for appropriate

relief (the “Amended MAR”) as allowed by N.C. Gen. Stat. § 15A-1415(g). The

Amended MAR alleged errors within the scope of N.C. Gen. Stat. § 15A-1415

including that N.C. Gen. Stat. § 14-132(a)(1), the disorderly conduct statute

defendant was convicted of violating, is unconstitutionally overbroad. This argument

was not included in defendant’s Initial MAR.

On 10 December 2014, the trial court entered an order denying appropriate

relief (the “Second Order”) based on its review of “the Motion,” a trial transcript, and

other materials in the record. The Second Order does not define the term “the

Motion” or otherwise reference the Initial MAR or the Amended MAR, but it appears

from the content of the Second Order that the trial court addressed only the issues

raised in the Initial MAR. The Second Order does not determine the merits of the

claims added by defendant in the Amended MAR, including the claim that N.C. Gen.

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Opinion of the Court

Stat. § 14-132(a)(1) is unconstitutional. Accordingly, it appears that the trial court

never determined the merits of defendant’s Amended MAR.

The record for defendant’s appeal to this Court was settled on 26 January 2015

by the expiration of the time allowed for the State to serve defendant with notice of

its approval of the proposed record or with an alternative proposed record.

On 3 August 2015, defendant filed a MAR in this Court (the “Appellate MAR”).

In the Appellate MAR, defendant makes the same constitutional claims as she did to

the trial court in the Amended MAR. Because the record on appeal has been settled,

defendant’s Appellate MAR is properly before this Court.

Although this Court ordered that a copy of the Appellate MAR and the State’s

response be forwarded to the trial court, those pleadings, through inadvertence, were

not forwarded. The complex procedural history of this case, along with missing

portions of the record, may explain the trial court’s order stating that it was a “bit

baffled as to what evidence or proceedings the Court of Appeals wanted” the trial

court to consider on remand.

On 30 November 2015, the trial court proceeded with a hearing in an effort to

comply with this Court’s remand order. The trial court conducted a hearing, but

neither defendant nor the State offered any evidence. The trial court made findings

of fact regarding defendant’s objections during trial and concluded as a matter of law

that defendant raised state and federal constitutional claims at trial.

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Opinion of the Court

The trial court has not determined the merits of the constitutional claims in

defendant’s Amended MAR. Those claims, which are also raised in defendant’s

Appellate MAR, involve only issues of law and are now addressed in this opinion.

II. Factual Background

On 25 September 2012, defendant’s seventeen-year-old son was arrested by

Officer Joseph Glenn with the Carrboro Police Department (“CPD”) upon a warrant

charging him with failure to appear. While at the CPD, defendant’s son called

defendant, at which time Officer Glenn informed defendant that her son was being

arrested and taken before a magistrate. At that time, defendant became irate and

Officer Glenn informed defendant that she could speak to the magistrate.

Officer Glenn then transported defendant’s son to the magistrate’s office, a

courtroom, where the magistrate on duty set bond. When defendant’s son was unable

to post bond, a process Officer Glenn explained to defendant during a second call by

defendant’s son to defendant upon arrival at the Orange County Jail, Officer Glenn

began the jail admittance process.

At the time of defendant’s arrival at the facility, Officer Glenn was standing

with defendant’s son in the lobby of the jail, immediately outside of the magistrate’s

courtroom. When defendant came through the door visibly upset, Officer Glenn asked

defendant if she was the mother. Defendant then replied, “Yes, I’m his F-ing mother.”

Defendant was then informed that her son was going to be admitted to the jail

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Opinion of the Court

because he was unable to post bond. At that point defendant stated, “No, he’s coming

home with me.” When Officer Glenn once again said that her son could not post bond,

defendant screamed, “No, you’re going to give me my son now.” These events

transpired in the jail lobby in front of the magistrate’s courtroom.

Upon hearing defendant’s loud scream, Corporal Danotric Nash with the

Hillsborough Police Department, along with Officer Jason Winn, responded to the

area where defendant was yelling at Officer Glenn and said, “Ma’am, you have to

calm down, this is the lobby of the jail.” Defendant continued yelling, at which time

Corporal Nash advised her to step outside and walked her toward the door. When

Corporal Nash went to close the door, defendant resisted, banging loudly on the closed

door twice. Defendant stopped banging on the door when Corporal Nash informed

her she would be charged if she continued banging on the door or if she damaged any

property.

Corporal Nash then observed defendant talking on her cell phone and, after

she hung up, stated to defendant, “Ma’am, if you calm down, if you just go speak to

the magistrate. Or, your friend that you was on the phone with, or a Judge, maybe

he’ll undo the bond.” Defendant replied, “Shut the F up talking to me, shut the F up

talking to me.” Defendant was then advised to leave and directed to the parking lot

by Corporal Nash. According to Corporal Nash, defendant then grabbed him,

scratching the left side of his face behind his ear, causing him to bleed. Corporal

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Opinion of the Court

Nash and Officer Winn then arrested defendant. At trial, defendant testified that

she thought Corporal Nash was going to grab her so she put up her hands in a

defensive movement, thereby making contact with Corporal Nash’s face.

Defendant was acquitted on the charge of assaulting an officer but convicted

of disorderly conduct in a public facility.

III. Discussion

A. Sufficiency of Charging Document

The facts of this case show that defendant, upset that her son was being arrested,

engaged in abusive conduct toward two officers who were in the lobby of the jail while

her son was being processed into the jail. The statute under which defendant was

charged makes it a misdemeanor for any person to “[m]ake any rude or riotous noise,

or be guilty of any disorderly conduct, in or near any public building or facility[.]” 2

N.C. Gen. Stat. § 14-132(a)(1) (2013). The charging document does not use the words

“rude or riotous noise” but instead states that the defendant did unlawfully “curse

and shout” at police officers in the jail lobby.

Without a valid warrant or indictment, a court lacks jurisdiction to proceed.

Challenges to the validity of an indictment may be raised at any stage in the

proceedings and we review the challenge de novo. State v. McKoy, 196 N.C. App. 650,

652, 675 S.E.2d 406, 409 (2009). In a misdemeanor case the charging document may

2 Defendant does not contest the fact that the lobby of a jail is a public facility.

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Opinion of the Court

be a statement of charges instead of an indictment. See N.C. Gen. Stat. § 15A-922

(2013). Whether by statement of charges or by indictment, the charging document

shall require:

[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.

N.C. Gen. Stat. § 15A–924(a)(5) (2013).

An indictment has been held to be sufficient “if it charges the offense in a plain,

intelligible and explicit manner[.]” State v. Taylor, 280 N.C. 273, 276, 185 S.E. 2d

677, 680 (1972). This Court recently described the requirements of a valid

indictment, which apply equally to a statement of charges, as follows:

Pursuant to N.C. Gen. Stat. § 15A-924(a)(5) (2013), a valid indictment must contain ‘‘[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant’s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.’’ An indictment ‘‘is sufficient in form for all intents and purposes if it expresses the charge against the defendant in a plain, intelligible, and explicit manner.’’ N.C. Gen. Stat. § 15–153 (2013). “[T]he purpose of an indictment . . . is to inform a party so that he may learn with reasonable certainty the nature of the crime of which he is accused[.]” State v. Coker, 312 N.C. 432, 437, 323 S.E.2d 343, 347 (1984). The trial court need not subject the indictment to ‘‘hyper technical scrutiny with respect to form.’’ In re S.R.S., 180 N.C. App. 151, 153, 636 S.E.2d 277, 280 (2006). ‘‘The general rule in this

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Opinion of the Court

State and elsewhere is that an indictment for a statutory offense is sufficient, if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words.’’ State v. Greer, 238 N.C. 325, 328, 77 S.E.2d 917, 920 (1953).

State v. Simpson, __ N.C. App. __, __, 763 S.E.2d 1, 3 (2014).

As stated earlier, defendant was tried upon a statement of charges (AOC

Form–CR-120) drafted by the Assistant District Attorney which alleged:

I, the undersigned, upon information and belief allege that on or about the date of offense shown and in the county named above, the defendant named above did unlawfully and willfully curse and shout at the officers J. Glenn of the Carrboro Police Department and officer D. Nash of the Hillsborough Police Department while inside the lobby of the Orange County Jail[.]

The statement of charges also references N.C. Gen. Stat. § 14-132(a)(1), which

provides that “[i]t is a misdemeanor if any person shall . . . [m]ake any rude or riotous

noise, or be guilty of any disorderly conduct, in or near any public building or

facility[.]” N.C. Gen. Stat. § 14-132(a)(1) (2013).

It is difficult to discern from defendant’s brief exactly what she complains of

with regard to the notice required in a charging document as she seems to merge her

arguments regarding the jury instructions with her argument as to the sufficiency of

the notice provided by the statement of charges.

While the statement of charges does not use the phrase “rude or riotous noise”

and instead charges that defendant did “curse and shout” at the officers while in the

lobby of the jail, even defendant acknowledges that this satisfied the first prong of

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Opinion of the Court

the elements of the offense. In her brief, defendant properly states the elements of

the offense of which she has been convicted stating: “Accordingly, from the language

of the statute, the elements of this crime are: First, that the defendant made a rude

or riotous noise or is guilty of disorderly conduct; and second, that such rude or riotous

noise or disorderly conduct occurred in or near a public building or facility.”

Defendant then goes on to acknowledge that “curse and shout” are equivalent to

making a “rude or riotous noise” when she states: “The concise allegation in the

Warrant and Misdemeanor Statement of Charges that I ‘cursed and shouted’ in the

lobby of the jail may very well support the ‘rude or riotous noise’ prong of the first

element of Disorderly Conduct in a Public Building pursuant to N.C. Gen Stat. § 14-

132(a)(1)[.]”

We agree the charging document in this case was sufficient because it charged

the offense in N.C. Gen. Stat. § 14-132(a)(1) “in the words of the statute, either

literally or substantially, or in equivalent words.” Simpson, __ N.C. App. at __, 763

S.E.2d at 3. There is no practical difference between “curse and shout” and “rude or

riotous noise.” Either phrase provides the defendant more than adequate notice of

what behavior is alleged to be the cause of the charges. In other cases our courts have

found common sense definitions proper when upholding indictments. For instance,

in State v. Cockerham, this Court held an indictment charging a defendant with

discharging a firearm into an occupied property was not defective where the

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Opinion of the Court

indictment read “that dwelling known as apartment ‘D-1’, located at 2733 Wake

Forest Highway, Durham, North Carolina. . . .” 155 N.C. App. 729, 735, 574 S.E.2d,

694, 698 (2003). The word “apartment” does not appear in the statute, which instead

lists “building, structure . . . or enclosure.” N.C. Gen. Stat. § 14-34.1(a) (2013). Thus,

we have held that words in an indictment or other charging document which fit

within the definition of the words in a statute sufficiently describe the crime charged

so as to provide the court with jurisdiction. In other words, we properly interpret

charging documents when we utilize normal definitions of the words in the document,

even if they are not the exact same words as in the statute. This notice pleading has

replaced the use of “magic words” and allows for a less exacting standard, so long as

the defendant is properly advised of the charge against him or her.

In analyzing the phrase “rude and riotous noise” in N.C. Gen. Stat. § 14-

132(a)(1), we note the ordinary definitions. “Rude” is defined as “ill-mannered;

discourteous.” The American Heritage Dictionary, 1076 (Second College Edition

1985). Is not a person who is cursing and shouting acting in an ill-mannered,

discourteous way? The same dictionary defines “riot” as “an unrestrained outbreak,

as of laughter or passions” and “riotous” as “boisterous.” Id. at 1064. When one is

shouting curses at another person, are they not engaged in an unrestrained outbreak

of passion? Our Supreme Court has long believed so. See State v. Horne, 115 N.C.

739, 740-41, 20 S.E. 443, 443 (1894).

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Opinion of the Court

The words in the charging document in this case fit within the definition for

the behavior described in the statute and are thus sufficient to confer jurisdiction so

that the trial could proceed. Thus, defendant’s claim that the statement of charges

is defective is overruled.

B. Instructional Error

Defendant next argues that the trial court committed instructional error by

giving pattern jury instruction N.C.P.I. -- Crim. 236A.31 (1999). The court instructed

the jury as follows:

Now, the Defendant, Wendy Dale, has been charged with disorderly conduct. For you to find the Defendant, Wendy Dale, guilty of this offense, the State must prove four things beyond a reasonable doubt.

First, that the Defendant, Wendy Dale, willfully and without justification or excuse, made or used an utterance, gesture or abusive language.

Secondly, that such utterance, gesture or abusive language was intended and plainly likely to provoke a violent retaliation, and thereby cause a breach of the peace.

Third, that such utterance, gesture or abusive language was a public disturbance. A public disturbance is an annoying, disturbing or alarming act or condition occurring in a public place that is beyond what would normally be tolerated in that place at that time. The Orange County jail lobby is a public place.

And fourth, that such public disturbance was intentionally caused by the Defendant, Wendy Dale.

If you find from the evidence beyond a reasonable doubt

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Opinion of the Court

that on or about the alleged date, September 25th, 2012, the Defendant, Wendy Dale, willfully and intentionally, without justification or excuse, made or used an utterance, gesture or abusive language that was intended and plainly likely to provoke violent retaliation, and thereby caused a breach of the peace, and that such utterance, gesture or abusive language was a public disturbance, it would be your duty to return a verdict of guilty.

At the conclusion of the charge, defendant’s counsel made no suggestions for changes

and did not object. Defendant now claims the error amounts to plain error because it

is prejudicial.

This Court’s review of jury instructions is limited to a review for plain error

when the issues concerning the instructions are not preserved below. See N.C. R.

App. P. 10(a)(4) (2015).

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice-that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations

and quotation marks omitted).

In the instructions issued in this case, the trial court required the State to

prove an element that was not required by the charging statute, that being the

requirement that the “utterance, gesture or abusive language that was intended and

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Opinion of the Court

plainly likely to provoke violent retaliation, and thereby caused a breach of the

peace[.]” While defendant may argue that her statements were not likely to so

provoke, that is an issue of fact to be resolved by the jury. When she challenged the

authority of the court to order her son into detention and stated she was going to take

him home, without regard to the court process and the requirements of bond, it was

within the jury’s prerogative to find otherwise.

Furthermore, as the State had to prove more than was required in order to

obtain a conviction, there is no prejudice to defendant. See State v. Farrar, 361 N.C.

675, 679, 651 S.E.2d 865, 867 (2007) (such variance is not fatal when variance

benefits the defendant). In Farrar our Supreme Court held “the trial court’s charge

to the jury . . . benefitted [the] defendant[ ] because the instructions required the

State to prove more elements than those alleged in the indictment. Therefore, there

was no prejudicial error in the instructions.” Id.

Similarly in this case, it is clear defendant benefitted from the charge given, to

which no objection was made. It is unlikely defendant would have been acquitted

had the trial court instructed the jury by tracking the statute or had given the charge

approved in State v. Leyshon, 209 N.C. App. 755, 710 S.E.2d 710, COA 10-556

(1 March 2011) (unpub.), available at 2011 WL 705140, appeal dismissed, 365 N.C.

203, 710 S.E.2d 52 (2011), an unpublished case cited in both parties’ briefs. The

instruction in Leyshon provided the jury the following guidance:

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Opinion of the Court

[I]f you find from the evidence in this case and beyond a reasonable doubt that on or about the alleged date of July 14, 2008 that this Defendant did make a rude or riotous noise or engage in disorderly conduct within the Watauga County Courthouse. If you find each of those things beyond a reasonable doubt, then it would be your duty to return a verdict finding the Defendant guilty of Disorderly Conduct.

2011 WL 705140 at .

A simple comparison of the two instructions demonstrates the State had to

prove much more to obtain a conviction in this case than was actually required. Thus,

in accordance with Farrar, we hold the trial court did not commit prejudicial error,

much less plain error, by giving the instruction now being contested. Defendant’s

argument is overruled.

C. Double Jeopardy

Defendant next argues that because she was acquitted of resisting, delaying,

or obstructing an officer in violation of N.C. Gen. Stat. § 14-223 (2013), she must be

acquitted of the charge for which she was convicted, disorderly conduct in a public

facility. Defendant asserts the argument as double jeopardy.

Double jeopardy is prohibited under both the U.S. Constitution and the North

Carolina Constitution’s “Law of the Land Clause.” See U.S. Const. amend. V; State

v. Gardner, 315 N.C. 444, 464, 340 S.E.2d 701, 714 (1986). A plea under former

jeopardy fails unless it is grounded both in law and fact. If the two offenses contain

elements which differ then the offense is not well grounded in law. State v.

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McAllister, 138 N.C. App. 252, 256, 530 S.E.2d 859, 862, appeal dismissed, 352 N.C.

681, 545 S.E.2d 724 (2000). To be well grounded in fact, the same evidence must

support a conviction in both cases. State v. Ray, 97 N.C. App. 621, 623, 389 S.E.2d

422, 424 (1990). As can be readily seen from the previous discussion of the elements

for the offense of disorderly conduct, the two offenses have different elements and the

proof of the disorderly conduct charge does not require any proof that the prohibited

conduct obstructed or resisted an officer. This argument is baseless and is overruled.

D. Constitutionality of N.C. Gen. Stat. § 14-132(a)(1)

Defendant, in her Appellate MAR, contests the constitutionality of N.C. Gen.

Stat. § 14-132(a)(1) both as enacted and as applied to her. In the Appellate MAR,

defendant argues that she had a First Amendment right to curse and shout in a public

facility at officers who were in the process of jailing her son despite being warned that

she was in the lobby of the jail and had to calm down. This Court is not going to

engage in a lengthy discussion of the void for vagueness doctrine as our Supreme

Court has already decided that the statute at issue here is not void for vagueness.

See In Re Burrus, 275 N.C. 517, 532, 169 S.E.2d 879, 888 (1969), aff’d sub nom.,

McKeiver v. Pennsylvania, 403 U.S. 528 (1971). In that case the statute at issue

provided that if a person “shall make any rude or riotous noise or be guilty of any

disorderly conduct in any public building of any county, or shall commit any nuisance

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Opinion of the Court

in such building, he shall be guilty of a misdemeanor[.]” Id. at 531, 169 S.E.2d at 888.

Our Supreme Court went on to say:

There is nothing vague or indefinite about these statutes. Men - even children - of common intelligence can comprehend what conduct is prohibited without overtaxing the intellect. Judges and juries should be able to interpret and apply them uniformly. There, as here, defendants argued that the statute was void because its prohibitions were uncertain, vague and indefinite. In upholding that statute, the court said: “It is difficult to believe that the defendants are as mystified as to the meaning of these ordinary English words as . . . they profess to be in their brief. Clearly, they have grossly underestimated the powers of comprehension possessed by ‘men of common intelligence.’ ” That observation seems appropriate here.

The Supreme Court of the United States in sustaining a conviction in the courts of New Jersey for a violation of an ordinance forbidding the use of sound trucks emitting “loud and raucous” sound, said: “The contention that the section is so vague, obscure and indefinite as to be unenforceable merits only a passing reference. This objection centers around the use of the words ‘loud and raucous.’ While these are abstract words, they have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden.” Kovacs v. Cooper, 336 U.S. 77, 93 L. Ed. 513, 69 S. Ct. 448, 10 A.L.R. 2d 608 (1949).

Id. at 532, 169 S.E.2d at 888-89 (internal citation omitted).

As our Supreme Court has found a statute that is virtually identical to the

statute as the one now in force to be constitutional, this Court is bound to uphold the

constitutionality of N.C. Gen. Stat. § 14-132 (a)(1). In Re: Civil Penalty, 324 N.C. 373,

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384, 379 S.E.2d 30, 37 (1989). Defendant’s argument that the statute is

unconstitutional is thus overruled.

Defendant’s argument that the statute as applied to her is unconstitutional

also lacks merit. As we have found the statute to be constitutional, certainly her

misbehavior in the lobby of the jail adjacent to the magistrate’s courtroom violates its

proscription of rude or riotous conduct in a public facility, or at the very least, raised

a jury issue now resolved against defendant. This argument is also overruled.

IV. Conclusion

Having found that the statement of charges was not defective, that defendant’s

acquittal of resisting an officer in District Court did not prohibit her being tried for

disorderly conduct in Superior Court, that the trial court did not commit prejudicial

error in its jury instructions, and the statute in question is both constitutional upon

its face and as applied, we find defendant’s trial was conducted free of prejudicial

error. Thus, we uphold her conviction.

NO ERROR

Judge STROUD concurs.

Judge INMAN concurs in result only.

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