Misdemeanor Criminal Summons

[xyz1]

My hubby's ex is at it again.

Background:

She has filed five charges (all Communicating Threats and Assault on a Female) against three people since 2002 ~ Which she has always ended up having them Dismissed by her choice (four of them...the last one is set for a court date 1/24/06)

2002 ~ against my husband ~ Communicating Threats ~ Dismissed by her
2003 ~ against her husband ~ Assault on a Female ~ Dismissed by her
2004 ~ against me ~ Communicating Threats ~ Dismissed by her
2005 ~ against her husband ~ Assault on a Female ~ Dismissed by her
2005 ~ against my husband ~ Communicating Threats ~ Pending court date

My husband has full legal and physical custody of his daughter but she has been living at her mother's house for about 1 1/2 years now. At the moment she is being an out of control teenager and doing things that are dangerous to her health and safety. She has admitted doing drugs, drinking, smoking and having underage sex...she is 16 year old.

(content deleted by soc, to protect defendant's attorney-client privilege).

The law in NC is this:

14-277.1 Communicating Threats
     (a)  A person is guilty of a Class 1 misdemeanor if without lawful authority:
            (1)  He willfully threatens to physically injure the person or that person's child, sibling, spouse, or dependent or willfully threatens to damage the property of another;
            (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.
      (b)  A violation of this section is a Class 1 misdemeanor. (1973, c. 1286, s. 11; 1993, c. 539, s. 172; 1994, Ex. Sess., c. 24, s. 14(c); 1999-262, s. 2.)

My Questions:

1 ~ What does the law mean when it states "without lawful authority"?

2 ~ Worst case...what are the punishments for a Class 1 misdemeanor in NC?

3 ~ What can we do about the ex filing charges and dismissing them all the time? (I really don't care if she does that to her own husband but it shows a pattern and I pull all of our Crimminal records to prove it)

4 ~ Does this case NEED for us to hire a lawyer to protect my husband?

Thank you in advance Soc and any advice is welcome from others too.

[socrateaser]

>My Questions:
>
>1 ~ What does the law mean when it states "without lawful
>authority"?

There are certain defenses to a criminal charge, such as self defense, or consent, that relieve a defendant of criminal liability for his/her actions. For, example, if the person to whom you are communicating the threat is pointing a gun at you when you make the threat, and your communication operates to convince the assailant to not shoot you, then that would be lawful authority. Or, suppose a police officer tells a person to "Stop running or I'll shoot." Well, it may be that the officer has lawful authority to prevent the escape of a dangerous felon, so the law would not operate in this circumstance.

Discipline of a child, could conceivably also fall within the scope of lawful authority, as could first amendment freedom of speech, because generally, a person can say whatever they wish as long as they do not have the present ability to actually carry out a threat, and the listener could not objectively believe that the threat would likely be carried out.

Nevertheless, once the DA is involved, there is pressure to obtain a guilty verdict, if a real case can be made out. So, if the grandmother is prepared to testify against your husband, you could have a big problem, because that is an unlikely circumstance where a jury might reasonably infer that the mother had experience and knew when her son was serious and when he was joking.
>
>2 ~ Worst case...what are the punishments for a Class 1
>misdemeanor in NC?

I don't know NC law specifically, but a misdemeanor generally is a crime wherein a defendant may be punished by a jail term of up to ONE YEAR and subjected to a fine of up to $50,000!!!

And, although I doubt this outcome, this is still not something to take lightly, so GET A LAWYER AND STOP TELLING PEOPLE YOUR VERSION OF THE STORY.
>
>3 ~ What can we do about the ex filing charges and dismissing
>them all the time? (I really don't care if she does that to
>her own husband but it shows a pattern and I pull all of our
>Crimminal records to prove it)

You can sue for malicious prosecution, but if the ex has no money or substantial assets, like a home, you'll probably never collect anything. You can also file a complaint with the DA for false reporting, but it's still up to the DA to prosecute, and unless he/she believes that there's a public interest being served that outweighs the financial and time cost to the State, then the DA can decide to nolle prosequi (not prosecute).

>4 ~ Does this case NEED for us to hire a lawyer to protect my
>husband?

Hard to say, without knowing the credibility of the witnesses. I'd certainly run the entire case by an attorney to make certain I wasn't evaluating the situation incorrectly. A local criminal defense attorney will know the public prosecutor's disposition about this sort of case and the relative likelihood of it going to trial, and that will permit you to better evaluate your risk.

[xyz1]

>STOP TELLING
>PEOPLE YOUR VERSION OF THE STORY.
>>

Sorry...and thank you for editing the post...stupid mistake on my part.

Thank you very much for the information