State v. Bowen

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-213

No. COA21-43

Filed 5 April 2022

Mecklenburg County, No. 17 CRS 206200

STATE OF NORTH CAROLINA

v.

JAIME SUZANNE BOWEN

Appeal by Defendant from judgment entered 24 September 2019 by Judge

George Cooper Bell in Mecklenburg County Superior Court. Heard in the Court of

Appeals 6 October 2021.

Attorney General Joshua H. Stein, by Associate Attorney General Brian M.

Miller, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron

Thomas Johnson, for Defendant.

WOOD, Judge.

¶1 Jaime Suzanne Bowen (“Defendant”) appeals from a judgment entered

following her conviction of extortion. On appeal, Defendant argues the First

Amendment to the United States Constitution requires the word “threat” in N.C.

Gen. Stat. § 14-118.4 to be construed in accordance with the term “true threat”; and

as such, the evidence was insufficient to show she committed a true threat. After a

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careful review of the record and applicable law, we affirm the judgment of the trial

court.

I. Factual and Procedural Background

¶2 In 2011, Steven Nason (“Nason”) visited Seeking Arrangement,1 an online

dating service where a “sugar daddy,” seeks to meet a “sugar baby.” At the time,

Nason was married and had children. According to Nason, he accessed Seeking

Arrangement because he believed his current marriage was difficult and he was

“seeking . . . [another] relationship and . . . was willing to help someone financially.”

¶3 Nason met Defendant, who was twenty-eight years of age, through the website.

The parties began a sexual relationship that lasted a couple of months, during which

time Nason provided Defendant with financial compensation. Thereafter, Nason

divorced his wife in 2013 and re-married in 2016.

¶4 On December 9, 2016, Nason received a LinkedIn message from Defendant,

stating to let her know if he “would ever want [sic] grab lunch []or dinner . . . .” When

Nason did not respond to Defendant’s initial message, Defendant sent two more

messages to him over LinkedIn, and after acquiring his e-mail address, also e-mailed

Seeking, originally called Seeking Arrangement, is a website where “ ‘sugar daddies’

1

and ‘sugar mommas’ could meet ‘sugar babies’ by honestly sharing expectations for a

relationship upfront. . . . Seeking is about identifying what drives us and how we can live

our best lives with someone by our side.” SEEKING, https://www.seeking.com/about-us (last

visited March 25, 2022).

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him. After the parties exchanged a few e-mails, Defendant informed Nason she was

writing a book about her experience on Seeking Arrangement titled “The Sugar Lie.”

According to Defendant, the book was a “memoir of . . . [her] experience on Seeking

Arrangement[].” Nason was included in Defendant’s book because the two “pursued

a paid, sexual, relationship from meeting on the site . . . .” Defendant explained she

reached out to Nason, because there was “somebody interested in publishing” “The

Sugar Lie,” and she “needed to reach out to everybody that . . . [she] had written about

. . . .” After receiving this e-mail, Nason retained an attorney to review and assist

him with the situation.

¶5 When Nason did not respond to the e-mail, Defendant sent two certified letters

to his home address. Therein, Defendant again alerted Nason about her book and

stated she “had to send a certified letter to your ex-wife, as statements you made in

regard to her in your marriage are to be included.” In response, Defendant sent a

letter to Nason asking, in relevant part, “[w]hat alternatives are available?”

¶6 Seventeen days later, Nason received an e-mail from Defendant’s new e-mail

address, Thesugarlie@gmail.com. Defendant explained to Nason she had “reached

out to your ex-wife twice” and because Defendant’s ex-wife had not responded, “the

only person . . . [the ex-wife] will be able to come after for defamation . . . is you.”

Regarding possible alternatives, Defendant stated that other gentlemen had asked

her “to consider working out a confidentiality agreement . . . [and she was] open to

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discussing that.” Defendant clarified that “all the other men who have asked me to

consider a confidentiality agreement have made financial offers” ranging from

$100,000.00 to $500,000.00.

¶7 Thereafter, Defendant began to e-mail Nason more frequently. Defendant

pressured Nason to send his “offer” for a confidentiality agreement by a certain

deadline because she would soon decide “who’s offer, if any, I will be accepting.” When

Nason failed to provide Defendant with an offer, Defendant e-mailed him stating that

he would not receive a confidentiality agreement, and she would be “contacting the

Dr. Phil show to see about getting on to promote . . . [her] book around the time it’s

coming out. . . . [and] [t]here may be a chance they might reach out to you to appear

on the show or make a comment.”

¶8 Notwithstanding Nason missing her initial deadline, Defendant continued to

send messages to him through e-mail and LinkedIn in her effort to persuade him to

make a monetary offer in exchange for a confidentiality agreement. After multiple

messages without a response, Defendant e-mailed Nason on February 7, 2017, saying

she would contact his current wife “for a statement since . . . [Nason is] going to have

to tell her about the book and being on [s]eeking [a]rrangement[] . . . [and] since other

women you met on there will probably come forward once the book is out.”

¶9 That same day, Nason met with Detective Matthew Grimsley with the

Charlotte Mecklenburg Police Department. Nason provided Detective Grimsley with

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copies of the e-mails exchanged with Defendant, and Detective Grimsley initiated an

investigation of Defendant. Thereafter, Nason coordinated every communication

between himself and Defendant with Detective Grimsley.

¶ 10 Meanwhile, Defendant continued to demand Nason make her an “offer” and

pay for a confidentiality agreement. Acting under Detective Grimsley’s direction,

Nason sent a message to Defendant with an offer of $250,000.00. Defendant accepted

Nason’s offer and sent a confidentiality agreement to him. On February 9, 2017,

Nason asked Defendant to meet him in a public place to deliver the money. Detective

Grimsley intended to arrest Defendant at the meeting. However, Defendant refused

to meet in person, demanding instead that the funds be sent to her by wire transfer.

At no point did Nason wire any money to Defendant.

¶ 11 On February 16, 2017, Detective Grimsley arrested Defendant at her

apartment in Charlotte, North Carolina. After Defendant’s arrest, the magistrate

issued a search warrant, and Detective Grimsley, accompanied by other officers,

returned to Defendant’s apartment to conduct a search. The officers’ search resulted

in the seizure of confidentiality agreements between Defendant and multiple other

men; however, the officers did not find any evidence of Defendant having written a

book or being in contact with a publisher or Dr. Phil. On September 18, 2017,

Defendant was indicted for extortion.

¶ 12 At trial, Defendant twice moved to dismiss the charges, but both motions were

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denied. On September 24, 2019, the jury found Defendant guilty of extortion

pursuant to N.C. Gen. Stat. § 14-118.4. That same day, the trial court sentenced

Defendant to 16 to 29 months in confinement, suspended the sentence, and placed

Defendant on 24 months of supervised probation. Defendant gave oral notice of

appeal in open court.

II. Discussion

A. Defendant’s Constitutional Argument Was Preserved

¶ 13 At the outset, we address the State’s contention that Defendant’s argument on

appeal was not preserved. Appellate Rule 10(a)(3) provides, “[i]n a criminal case, a

defendant may not make insufficiency of the evidence to prove the crime charged the

basis of an issue [later] presented on appeal unless a motion to dismiss the action, or

for judgment as in case of nonsuit, is made at trial.” N.C.R. App. P. 10(a)(3). A

properly made motion to dismiss for insufficiency of the evidence under Appellate

Rule 10(a)(3) “preserves all insufficiency of the evidence issues for appellate review

. . . .” State v. Golder, 374 N.C. 238, 246, 839 S.E.2d 782, 788 (2020) (emphasis added).

Although Rule 10(a)(3) requires a defendant to make a motion, the defendant is not

required to “assert a specific ground for a motion to dismiss for insufficiency of the

evidence.” Id. at 245-46, 839 S.E.2d at 788 (citation omitted).

¶ 14 Here, the State argues since Defendant did not raise a constitutional argument

in her motions to dismiss at the trial court, her argument is not preserved for appeal.

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We disagree. Defendant was not required to state a specific ground for her motion to

dismiss as a properly made motion to dismiss preserves all arguments based on

insufficiency of the evidence. Id. Moreover, Defendant does not raise an entirely new

issue on appeal, but rather argues the insufficiency of the evidence to support a

conviction for extortion under her proposed Constitutional interpretation of N.C. Gen.

Stat. § 14-118.4. We hold Defendant’s motion to dismiss preserved for appellate

review all issues surrounding sufficiency of the evidence, including the Constitutional

argument Defendant now raises before this Court.

B. North Carolina’s Extortion Statute and The First Amendment

¶ 15 On appeal, Defendant argues the trial court erred by denying her motion to

dismiss because under the First Amendment, N.C. Gen. Stat. § 14-118.4 must be

construed to apply only to true threats. We disagree.

¶ 16 In support of her sole argument on appeal, Defendant relies heavily upon State

v. Taylor where this court held the First Amendment requires a “true threat” reading

to be applied to every anti-threat statute. State v. Taylor, 270 N.C. App. 514, 849

S.E.2d 776 (2020), rev’d, 379 N.C. 589, 2021-NCSC-164. Therefore, we first

determine whether the United States Constitution requires us to construe the North

Carolina extortion statute’s “threat” language as a “true threat” before reaching the

merits of Defendant’s sufficiency of the evidence argument.

¶ 17 On appeal, constitutional challenges and alleged violations are reviewed de

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novo. State v. Shackelford, 264 N.C. App. 542, 551, 825 S.E.2d 689, 695 (2019). When

an issue concerning the First Amendment arises, an appellate court must “ ‘make an

independent examination of the whole record’ in order to make sure that ‘the

judgment does not constitute a forbidden intrusion on the field of free expression.’ ”

Bose Corp. v. Consumers Union, 466 U.S. 485, 499, 104 S. Ct. 1949, 1958, 80 L. Ed.

2d 502, 515 (1984). E.g., State v. Taylor, 379 N.C. 589, 2021-NCSC-164 ¶ 44.

¶ 18 Any state statute that criminalizes speech “must be interpreted with the

commands of the First Amendment clearly in mind.” Watts v. United States, 394 U.S.

705, 707, 89 S. Ct. 1399, 1401, 22 L. Ed. 2d 664, 667. The importance of the First

Amendment is paramount within our State, and the trial court must construe any

statute that criminalizes speech in accordance with the First Amendment, even if the

statute does not explicitly require it. See also State ex rel. North Carolina Milk Com.

v. National Food Stores, Inc., 270 N.C. 323, 331, 154 S.E.2d 548, 554-55 (1967); State

v. Strickland, 27 N.C. App. 40, 43, 217 S.E.2d 758, 760 (1975). The State bears “the

burden of proving the speech it seeks to prohibit is unprotected.” Illinois ex rel.

Madigan v. Telemarketing Assocs., 538 U.S. 600, 620, 123 S. Ct. 1829, 1841, 155 L.

Ed. 2d 793, 810 n.9 (2003). Requiring the State, not the defendant, to prove whether

disputed speech is unprotected speech ensures equity in court proceedings. See

Speiser v. Randall, 357 U.S. 513, 526, 78 S. Ct. 1332, 1342, 2 L. Ed. 2d 1460, 1473

(1958) (“The man who knows that he must bring forth proof and persuade another of

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the lawfulness of his conduct necessarily must steer far wider of the unlawful zone

than if the State must bear these burdens.”).

¶ 19 Recent cases from both our appellate courts and the federal courts identify an

emerging trend in the law holding that the First Amendment requires all statutes

governing threats be construed as a “true threat.” Watts, 394 U.S. at 707, 89 S. Ct.

at 1401, 22 L. Ed. 2d at 667; United States v. Bagdasarian, 652 F.3d 1113, 1117 (9th

Cir. 2011). Cf. Taylor, at ¶ 17-19. Watts v. United States is among the first cases to

act as the catalyst for the “true threat” analysis requirement under the First

Amendment. In Watts, the defendant was convicted for knowingly and willfully

threatening the President of the United States after he stated at a political rally

[t]hey always holler at us to get an education. And now I

have already received my draft classification as 1-A and I

have got to report for my physical this Monday coming. I

am not going. If they ever make me carry a rifle the first

man I want to get in my sights is L.B.J.

Watts, 394 U.S. at 706, 89 S. Ct. at 1401, 22 L. Ed. 2d at 666. The U.S. Supreme

Court overturned the conviction reasoning “[t]he language of the political arena . . .

is often vituperative, abusive, and inexact. . . . Taken in context, and regarding the

expressly conditional nature of the statement and the reaction of the listeners,” the

defendant’s speech could not be construed as a true threat. Id. at 708, 89 S. Ct. at

1401-02, 22 L. Ed. 2d. at 667. The holding in Watts established that the First

Amendment “requires the [g]overnment to prove a true threat” exists when

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prosecuting under a statute that criminalizes a pure form of speech. Id. at 708, 89 S.

Ct. at 1401, 22 L. Ed. 2d at 667 (internal quotation marks omitted).

¶ 20 A “true threat” is an “objectively threatening statement communicated by a

party which possess the subjective intent to threaten a listener or identifiable group.”

State v. Taylor, 379 N.C. 589, 2021-NCSC-164, ¶ 34. See Virginia v. Black, 538 U.S.

343, 359, 123 S. Ct. 1536, 1548, 155 L. Ed. 2d 535, 552 (2003). The speaker of the

true threat need not intend “to carry out the threat. Rather, a prohibition on true

threats protects individuals from the fear of violence and from the disruption that

fear engenders, in addition to protecting people from the possibility that the

threatened violence will occur.” Id. at 360, 123 S. Ct. at 1548, 155 L. Ed. 2d at 552

(cleaned up) (citation omitted).

¶ 21 Our Supreme Court applied the holding in Watts to a North Carolina anti-

threat statute for the first time in State v. Taylor. In Taylor, the defendant posted

comments on Facebook against court officers, referencing that one officer would be

the “first to go[,]” and another officer could incur “death to her as well.” Taylor, at ¶

2, 7. Ultimately, defendant was convicted under N.C. Gen. Stat. § 14-16.7(a) for

knowingly and willfully making a threat to kill an officer of the court. Id. at ¶ 12-13.

Defendant appealed, and, in reversing the trial court, this Court determined his

conviction violated the true threat exception to the First Amendment. Id. at ¶ 3.

¶ 22 Subsequently, our Supreme Court affirmed the true threat exception to the

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First Amendment, noting “[i]f defendant’s Facebook posts contained any true threats,

then it is indisputable that he could be criminally punished . . . [but if the] posts did

not contain any true threats, then his expression is shielded by the First

Amendment.” Id. at ¶ 18. Our Supreme Court further stated “in defining and

applying the true threats exception, a statute criminalizing speech must be

interpreted with the commands of the First Amendment clearly in mind.” Id. at ¶ 24

(internal quotation marks omitted) (quotation omitted). Ultimately, our Supreme

Court held that the “Free Speech Clause of the First Amendment to the United States

Constitution protect[s] defendant from being convicted solely for publishing the

messages contained in his Facebook posts[.]” Id. at ¶ 4.

¶ 23 Here, Defendant urges this court to hold that the First Amendment of the

United States Constitution requires we apply the “true threat” requirement to the

terms within N.C. Gen. Stat. § 14-118.4 which sets forth the crime of Extortion.

Whether N.C. Gen. Stat. § 14-118.4 falls under the “true threat” requirement of the

First Amendment is a case of first impression. We decline to extend the “true threat”

requirement to N.C. Gen. Stat. § 14-118.4 and hold the First Amendment does not

require a threat under the terms of N.C. Gen. Stat. § 14-118.4 be a “true threat” to

fall outside the protections of the First Amendment.

¶ 24 Generally, the First Amendment “prevents government from proscribing

speech, . . . or even expressive conduct, . . . because of disapproval of the ideas

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expressed.” R. A. V. v. St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 2542, 120 L. Ed.

2d 305, 317 (1992). Our society, however, permits content-based restrictions on

speech that is “of such slight social value as a step to truth that any benefit that may

be derived from them is clearly outweighed by the social interest in order and

morality.” Id., 505 U.S. at 383, 112 S. Ct. at 2543, 120 L. Ed. 2d at 317 (quotation

omitted). Categories of speech that may be restricted are those forms of speech

intended and likely to “incite imminent lawless action, . . . obscenity, . . . defamation,

. . . speech integral to criminal conduct, . . . so-called ‘fighting words,’ . . . child

pornography, . . . fraud, . . . true threats, . . . and speech presenting some grave and

imminent threat the government has the power to prevent . . . .” United States v.

Alvarez, 567 U.S. 709, 717, 132 S. Ct. 2537, 2544, 183 L. Ed. 2d 574, 587 (2012).

Although the “true threat” requirement under the First Amendment has been applied

to speech surrounding political hyperbole, Courts have hesitated to apply the “true

threat” requirement to extortion. See also United States v. Quinn, 514 F.2d 1250,

1268 (1975).

¶ 25 In the case before us, Defendant was convicted of extortion under Section 14-

118.4. Extortion, though verbal, is a crime in and of itself. United States v. Marchetti,

466 F.2d 1309, 1314, (4th Cir. 1972). Like robbery or murder, extortion “refers to

criminal conduct that has a commonly understood meaning providing ample notice of

the conduct falling within its ambit, limiting the potential for abuse in enforcement,

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and ensuring that protected First Amendment speech is not within its reach.” United

States v. Coss, 677 F.3d 278, 289 (6th Cir. 2012). Extortion is speech that is integral

to criminal conduct, notwithstanding the content of the speech. It therefore falls

within the category of unprotected speech, and necessarily may be restricted. See

also Alvarez, 567 U.S. at 717, 132 S. Ct. at 2544, 183 L. Ed. 2d at 5887; Seals v. McBee,

898 F.3d 587, 597 (2017) (noting “extortion” is “unprotected speech”). As the Fifth

Circuit colorfully expressed in Quinn, “[i]t may categorically be stated that

extortionate speech has no more constitutional protection than that uttered by a

robber while ordering his victim to hand over the money, which is no protection at

all.” United States v. Quinn, 514 F.2d 1250, 1268 (5th Cir. 1975). In United States v.

Kirsch, the court found that true threat jury instructions should not be read in

conjunction with extortion statutes, explaining “the extortion statutes at issue in this

case already contain sufficient intent requirements. There is thus no need to further

separate innocent conduct from wrongful conduct.” United States v. Kirsch, 151 F.

Supp. 3d 311, 318 (W.D.N.Y. 2015).

¶ 26 We agree with the reasoning of the federal courts and hold that extortionate

speech as prohibited by N.C. Gen. Stat. § 14-118.4 is not constitutionally protected

speech. Thus, a “true threat” application and analysis to Section 14-118.4 is

unmerited.

¶ 27 Notwithstanding our holding, a statute prohibiting extortionate speech may

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itself be unconstitutional. Other courts in the federal circuit have addressed the

validity of extortion statutes under the First Amendment. The Sixth Circuit in Coss

held an extortion statute did not violate the First Amendment when the statute was

sufficiently “cabined by its own wrongful threat and intent to extort requirements to

survive constitutional muster.” United States v. Coss, 677 F.3d 278, 290 (6th Cir.

2012). In United States v. Hutson, the Ninth Circuit held a statute was valid under

the First Amendment

[b]ecause the statute in the present case is limited to

extortionate threats, it does not regulate speech relating to

social or political conflict, where threats to engage in

behavior that may be unlawful may nevertheless be part of

the marketplace of ideas. . . . The ‘intent to extort’

requirement of section 876 guarantees that the statute

reaches only extortionate speech, which is undoubtedly

within the government’s power to prohibit.

843 F.2d 1232, 1235 (9th Cir. 1988).

¶ 28 As in Coss and Hutson, Section 14-118.4 contains the necessary intent and act

requirements to pass constitutional muster. N.C. Gen. Stat. § 14-118.4 states: “Any

person who threatens or communicates a threat or threats to another with the

intention thereby wrongfully to obtain anything of value or any acquittance,

advantage, or immunity is guilty of extortion and such person shall be punished as a

Class F felon.” N.C. Gen. Stat. § 14-118.4 (2021). Per the plain language of Section

14-118.4, the “intent” component of the section lies in the requirement that the

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perpetrator must “communicate a threat or threats” while possessing the requisite

intent to “wrongfully . . . obtain anything of value or any acquittance, advantage, or

immunity . . . .” Id. The “act” component, in turn, rests in Section 14-118.4’s

prohibition of the crime of extortion within our State and does not limit speech

“relating to social or political conflict.” Hutson, 843 F.2d at 1235. Consequently, we

hold Section 14-118.4 withstands First Amendment scrutiny as it prohibits only

extortionate speech.

¶ 29 In this case, extensive evidence was presented to support Defendant’s

conviction of extortion. Defendant sent Nason multiple e-mails and letters asserting

that she was writing a book about their “sugar daddy” and “sugar baby” relationship.

Defendant told Nason she sent certified letters to his ex-wife regarding statements

he had made about her. When Nason did not immediately offer to “purchase” a

confidentiality agreement, Defendant sent frequent e-mails demanding Nason

submit a bid for a confidentiality agreement. Defendant threatened, absent a

confidentiality agreement, Nason’s ex-wife could come after him for defamation, he

may be asked to appear on the Dr. Phil show about the book, and his current wife

would receive letters from Defendant. Under these facts, there was ample evidence

to support the jury’s finding Defendant committed extortion under Section 14-118.4.

¶ 30 Finally, Defendant concludes her argument on appeal by alleging the evidence

was insufficient to show she committed a “true threat.” As discussed supra, because

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we hold the crime of extortion does not require a “true threat” under the First

Amendment, we need not address this argument.

III. Conclusion

¶ 31 Following the U.S. Supreme Court and federal appellate opinions, we hold

extortionate speech is criminal conduct in and of itself and, as such, is not

constitutionally protected speech. Therefore, the First Amendment does not require

that the “true threat” analysis be applied to N.C. Gen. Stat. § 14-118.4. Although

statutes prohibiting extortionate speech may, as a whole, be unconstitutional, Section

14-118.4 is narrowly tailored as to only restrict extortionate speech, and thus is valid

under the First Amendment. The evidence in this case supported the jury’s finding

that Defendant committed extortion in violation of Section 14-118.4. Accordingly, we

discern no error in the judgment of the trial court.

NO ERROR.

Judges ZACHARY and CARPENTER concur.