STATE OF NORTH CAROLINA
v. Forsyth County
No. 01CRS061202
JOANIE RENEE TUCKER
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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