An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1458


Filed: 1 July 2003



         v.                        Buncombe County
                                No. 02 CRS 50814, 50996
EDDIE L. UNDERWOOD                        

    Appeal by defendant from judgments entered 27 June 2002 by Judge Hal Harrison in Superior Court, Buncombe County. Heard in the Court of Appeals 30 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Angel E. Gray, for the State

    Michael E. Casterline for defendant-appellant.

    WYNN, Judge.

    From his convictions on two counts of communicating threats, and sentence to two consecutive terms of forty-five days imprisonment, defendant, Eddie L. Underwood, contends the trial court erred in denying his motion to dismiss because there was insufficient evidence. We find no error in his trial.
    The State's evidence tended to show that, in September 2001, defendant and his wife, Angela Underwood, were separated. After their separation, Ms. Underwood moved with their two children into her mother's home, but continued to have contact with defendant. In January 2002, Ms. Underwood asked defendant for a divorce. Defendant responded with suspicion that she was engaging in anillicit affair; Ms. Underwood denied defendant's allegation.
    On 17 January 2002, Ms. Underwood drove into the driveway of her mother's home and noticed defendant's vehicle pulling out of a nearby parking lot. Moments later, defendant began honking his car horn. When Ms. responded to the honking, defendant asked her to detail her whereabouts. Ms. Underwood informed defendant that her whereabouts were not his business. As she walked away, defendant told her, “If I catch you, I will kill you.” After defendant left, Ms. Underwood called the police.
    The next day, Ms. Underwood took out a restraining order on defendant. Thereafter, she returned to work at the school where her two children were students. As she arrived at school, she noticed defendant sitting in his truck. She parked close to the school entrance in order to enter the school quickly and call the police. However, the lobby door into the school was locked. Defendant approached her and said he wanted to talk to her. Ms. Underwood told him she did not have the time, and she quickly walked away. Although she jogged to get away from defendant, defendant continued to follow her. As she reached the gym door and started to enter, defendant pushed the door closed on her body. Eventually, she got through the door, and defendant did not follow her into the gym.
    However, as Ms. Underwood headed toward her classroom she noticed defendant walking towards her with a group of students, including their elder son. Ms. Underwood spotted one of her co- workers, Johneicie Jackson, and motioned for her to call 911;however, Ms. Jackson did not understand what she meant by the motion. Defendant followed Ms. Underwood, asking her, “Who is he? Who is he?” Inside the computer lab in the present of Ms. Jackson, Ms. Underwood and her two children, defendant told Ms. Underwood, “Don't forget what I said last night. I meant what I said. If I catch you, I will kill you.” Ms. Underwood then called 911.
    By his only argument, defendant contends there was insufficient evidence that his threats were made in a manner and under circumstances which would lead a reasonable person to believe the threats were likely to be carried out. Furthermore, defendant contends his threats were merely “exaggerated expressions of frustration, and that there was no reasonable apprehension that these threats would be carried out.” Defendant argues that Ms. Underwood's behavior was not consistent with that of a person who actually believed that the threats would be carried out. After careful review of the record, briefs and contentions of the parties, we find no error.
    “In ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference which can be drawn from that evidence.” State v. Dick, 126 N.C. App. 312, 317, 485 S.E.2d 88, 91 (1997). “[T]he question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged . . . and (2) of defendant's being the perpetrator of such offense.” State v. Brayboy, 105 N.C. App. 370, 373-74, 413 S.E.2d 590, 592 (1992).“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Williams, 133 N.C. App. 326, 328, 515 S.E.2d 80, 82 (1999) (citation omitted).
    In North Carolina, a defendant is guilty of communicating threats under N.C. Gen. Stat. § 14-277.1 (2002) if, without legal authority:
    (1)    [The defendant] willfully threatens to physically injure the person . . .;

    (2)    The threat is communicated to the other person, orally, in writing, or by any other means;

    (3)    The threat is made in a manner and under circumstances which would cause a reasonable person to believe that the threat is likely to be carried out; and

    (4)    The person threatened believes that the threat will be carried out.

See also State v. Cunningham, 344 N.C. 341, 360-61, 474 S.E.2d 772, 781 (1996).
    In the case sub judice, defendant argues that there was insufficient evidence to prove that his threats were believable. However, Ms. Underwood testified that defendant twice threatened to kill her, and that she believed that defendant would carry out the threats. Ms. Underwood testified that during their marriage, defendant had been abusive, including instances where defendant: (1) pulled her off a platform resulting in a trip to the emergency room; (2) attempted to sexually assault her, stopping only when she hit him with a wooden brush; (3) hit her in the head so hard that she flipped over a loveseat; and (4) told her that he had been in the military and knew how to hurt a person and not leave any marksor bruises. Ms. Underwood further testified that she feared defendant would carry out his threats, stating that when he made the first threat, he had a “crazed look like he was upset that I wanted to have this relationship over.”
    In addition, Bill Thompson, a custodian at Ms. Underwood's school, testified that he was in the gym on 18 January 2002 when Ms. Underwood attempted to enter through the gym doors. Mr. Thompson testified that the door was “slammed on her very hard, very fast.” Mr. Thompson further testified that he then locked the doors to the gym because he was concerned for the security of the people in the school. Moreover, Mr. Thompson stated that he was concerned for Ms. Underwood because she was “scared.”
    Considering the history of abuse that Ms. Underwood testified to, the fact that Ms. Underwood had recently told defendant she wanted a divorce, defendant's subsequent accusations that she was having an affair, as well as Mr. Thompson's testimony that the gym door was slammed shut on Ms. Underwood and that she appeared scared, a jury could reasonably infer that Ms. Underwood believed that defendant would carry out his threats, and, furthermore, that a reasonable person would believe that the threats were likely to be carried out. Accordingly, we find no error.
    No error.    
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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