An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-684


Filed: 4 May 2004


         v.                            Forsyth County
                                    No. 01CRS061202

    Appeal by defendant from judgment entered 3 December 2002 by Judge Judson D. DeRamus, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 19 April 2004.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General M. Janette Soles, for the State.

    Charns & Charns, by D. Tucker Charns, for defendant-appellant.

    HUNTER, Judge.

    Joanie Renee Tucker (“defendant”) was charged by warrant with disorderly conduct. On appeal from a conviction of the offense in district court, she was found guilty by a jury of the offense in superior court. She was sentenced to serve forty-five days in the custody of the North Carolina Department of Correction. The sentence was suspended and defendant was placed on supervised probation for thirty-six months.
    The State presented evidence tending to show that on 1 November 2001, defendant came to the Hall-Woodward Elementary School in Forsyth County to express her concerns to Ms. Rose Jackson Stowe (“Ms. Stowe”), principal of the school, about the treatment her daughter, a kindergarten student at the school, wasreceiving from her teacher. As defendant related her concerns to Ms. Stowe in the presence of the teacher and her daughter, she raised her voice louder and louder. Ms. Stowe asked defendant to leave because defendant was becoming “very, very loud” and Ms. Stowe was concerned about the child's presence in the room witnessing her mother's behavior. Defendant angrily responded, “'I'm not going any damn where.'” Ms. Stowe asked defendant again to leave. Defendant responded in a loud voice, “'I'm not going anywhere. I'm staying here. My daughter has rights.'” Ms. Stowe asked defendant to leave for a third time and told her that she would be forced to call the police if defendant did not leave. Defendant replied, “'I don't care who the hell you call. I'm not going anywhere.'” Ms. Stowe instructed her secretary to telephone the police. Ms. Stowe succeeded in walking defendant out of her office into a hallway. As they walked down the hallway, defendant “continued to yell and holler about her daughter's rights.” She also told Ms. Stowe, “'I'm going to have your job.'” Defendant asked to retrieve her daughter's medicine. After defendant received the medicine, Ms. Stowe asked defendant for a fourth time to leave. Defendant “got in [Ms. Stowe's] face” and aggressively responded, “'I'm not going any damn where.'” Ms. Stowe walked with defendant to the lobby doorway, and as defendant exited through the door, Ms. Stowe closed the door behind defendant. Ms. Stowe walked over to a window and observed defendant continuing to curse and yell. Defendant, still standing in the lobby, finally said,“'[y]ou bald headed fat ass bitch. You tell that to the police when they get here.'” Defendant then left the building.
    Defendant's sole assignment of error is to the denial of her motion to dismiss at the close of the evidence. In ruling upon a motion to dismiss, the trial court determines whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). “The trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged.” State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991). The court must consider all of the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). “If there is substantial evidence -- whether direct, circumstantial, or both -- to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.” State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
    The offense of disorderly conduct “is a public disturbance intentionally caused by any person who . . . [m]akes or uses any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.” N.C. Gen. Stat. § 14-288.4(a)(2) (2003). To withstand a motion to dismiss, the State must presentsubstantial evidence showing defendant willfully and unlawfully used abusive language which was intended and plainly likely to provoke violent retaliation by the average person and thereby cause a breach of the peace. State v. Cunningham, 34 N.C. App. 72, 76, 237 S.E.2d 334, 337 (1977). Because intent is a mental attitude not usually provable by direct evidence, it must ordinarily be proved by circumstantial evidence. State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974). The defendant's acts and conduct and the general circumstances existing at the time must be considered in determining intent. State v. Norman, 14 N.C. App. 394, 399, 188 S.E.2d 667, 670 (1972).
    Defendant contends that the evidence is insufficient to show defendant's utterances were intended and plainly likely to provoke violent retaliation. We disagree. Viewed in the light most favorable to the State, the evidence shows that defendant came to the school to confront Ms. Stowe and her daughter's teacher. Defendant was angry when she arrived at the school. She became increasingly angry and agitated as the conference progressed. Each time Ms. Stowe asked her to leave, defendant defiantly refused. The fourth time, defendant aggressively “got in [Ms. Stowe's] face,” causing Ms. Stowe to step back. Finally, after she walked out of the principal's office, defendant uttered an insult to Ms. Stowe in a voice with sufficient volume to be heard clearly through a closed door. At that time children, parents, teachers and staff were in the hallway of the school. Based upon the foregoing evidence, we conclude a jury could reasonably find that defendantsought to provoke retaliation by Ms. Stowe and to breach the peace by her utterances and conduct.
    We hold the court properly denied the motion to dismiss.
    No error.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

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