State v. Bishop

774 S.E.2d 337, 241 N.C. App. 545, 2015 N.C. App. LEXIS 522
CourtCourt of Appeals of North Carolina
DecidedJune 16, 2015
DocketNo. COA14–1227.
StatusPublished
Cited by3 cases

This text of 774 S.E.2d 337 (State v. Bishop) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bishop, 774 S.E.2d 337, 241 N.C. App. 545, 2015 N.C. App. LEXIS 522 (N.C. Ct. App. 2015).

Opinion

TYSON, Judge.

*546Robert 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 *547additional 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."

*341Detective 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.

*548Over 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.

II. Issues

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 *549appeared to him to be an instance of cyber-bullying; and, (3) admitting into evidence Defendant's statements about Christianity. *342III. Analysis

A. Overbreadth

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,

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Related

State v. Daughtridge
789 S.E.2d 667 (Court of Appeals of North Carolina, 2016)
State v. Bishop
787 S.E.2d 814 (Supreme Court of North Carolina, 2016)
State of West Virginia v. Matthew Calvert
West Virginia Supreme Court, 2016

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Bluebook (online)
774 S.E.2d 337, 241 N.C. App. 545, 2015 N.C. App. LEXIS 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bishop-ncctapp-2015.