An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-968


Filed: 6 April 2004


         v.                        Mecklenburg County
                                No. 01 CRS 43652

    Appeal by defendant from judgment entered 21 May 2003 by Judge Yvonne Mims Evans in Superior Court, Mecklenburg County. Heard in the Court of Appeals

    Attorney General Roy Cooper, by Assistant Attorney General Martin T. McCracken, for the State.

    James L. Goldsmith for defendant-appellant.

    WYNN, Judge.

    Defendant, Lawrence Alexander, presents the following issue for our consideration: Whether the trial court erroneously denied his motion to dismiss the charge of communicating threats for want of sufficient evidence. We conclude no error was committed in the proceedings below.
    Viewed in the light most favorable to the State, the evidence at trial tended to show that Defendant repeatedly telephoned his ex-wife, Latrice Alexander, on 4 October 2001, leaving a message that they “needed to talk.” When Ms. Alexander returned Defendant's call, he forbade her to have further contact with his mother. Ms. Alexander replied that she would continue to callDefendant's mother because she was the grandmother of Ms. Alexander's daughter. In response, Defendant “started screaming and cussing” and told Ms. Alexander “that he was going to blow [her] mother f_-king head off.” After contacting her fiancé, Ms. Alexander went to the police and to a magistrate, who issued a warrant for Defendant's arrest. Ms. Alexander believed Defendant would make good on his threat, based on his history of assaultive behavior toward her. Three months into her pregnancy with her daughter, Defendant beat Ms. Alexander into unconsciousness. Moreover, Defendant had kept a nine millimeter rifle in their residence throughout the marriage, despite being denied a gun permit. On one occasion, Defendant waved the gun in front of Ms. Alexander and her children, saying he was “just going to end it all.” When Ms. Alexander and the children fled the house, Defendant “hid up under the stairs waiting on [her] to return.” In another incident when Ms. Alexander was attempting to leave, Defendant fired the gun inside their house to make her think he had committed suicide.
    After the jury convicted Defendant of communicating threats, a Class 1 misdemeanor, on 21 May 2003, he received a suspended sentence of 45 days conditioned upon supervised probation of 24 months. Additionally, Defendant was ordered to serve an active term of 10 days in the county jail as a special condition of probation. Defendant appeals.
    In his sole argument on appeal, Defendant contends the trialcourt erred in denying his motion to dismiss the charge for want of sufficient evidence. To review the trial court's ruling, we must determine whether the State adduced “substantial evidence” of each essential element of the offense such that a reasonable juror could find defendant guilty beyond a reasonable doubt. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). As defined by N.C. Gen. Stat. § 14-277.1, the elements of the crime of communicating threats are as follows:
        (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.

        State v. Love, 156 N.C. App. 309, 316, 576 S.E.2d 709, 713 (2003).
    Defendant concedes the sufficiency of the evidence that he threatened Ms. Alexander with physical injury, that he communicated this threat to her, and that she believed he would carry out the threat. He asserts, however, that the State adduced no “substantial evidence that the threat was made in such a manner and under such circumstances that would cause a reasonable person to conclude that the threat would likely be carried out.” We disagree. The degree of Defendant's hostility on the telephone, his ownership of a gun, his previous acts of violence toward Ms. Alexander, and his past willingness to employ the gun in thecontext of their disputes are circumstances sufficient to allow reasonable belief that he was likely to make good on his threat. See State v. Elledge, 80 N.C. App. 714, 715, 343 S.E.2d 549, 550 (1986)(finding no error pursuant to Rule 404(b) in admitting evidence of prior assaults in a prosecution for communicating threats under N.C. Gen. Stat. § 14-277.1). Accordingly, we find no error below.
    No error.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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